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Opinions of Friday, 31 May 2013

Columnist: Ata, Kofi

Are Lead Counsels for 1st and 3rd Respondents Arrogant?

By Kofi Ata, Cambrdige, UK

For the second time in the ongoing presidential petition hearing at the Supreme Court (SC), a lead counsel from the respondents has misconducted himself in court. The lead counsel for first respondent, Mr Tony Lithur threw away a document supplied by the petitioners’ lead counsel in open court. In this short article I want to discuss the behaviour of three of the four lead counsels at the Supreme Court.

As I was listening to GBC radio, instead of GBC Tv, so I did not witness the incident on screen but immediately logged onto GBC Tv when a member of the bench commented on the incident. I saw Mr Lithur attempt to justify his uncouth behaviour as well as offer an apology. It made me wonder if this is the general behaviour of counsels in courts across Ghana. I say so because if this is not the case in the lower courts, how come in the highest court of the land, such despicable behaviour is exhibited? His demeanour did not show remorse even after his apology.

I have knowledge and experience of the operations of the judiciary here in the UK, including serving within the lowest ebb of the Employment Tribunals. My first experience was representing a client at an Employment Tribunals. I was amazed by the respect accorded me by the Barrister and QC (Queens Counsel) of the respondent. Since I was not a lawyer he referred to me as “my good friend” throughout the hearing. In my later years, I applied and was appointed a Member of the Tribunals and served for three years before resigning due to pressure of work. I also trained staff of the courts service, magistrates and judges as well as sat in courts with judges to observe their work. At no time, did I ever come across such behaviour in courts by a witness or counsels either towards the opposite side or towards the bench.

In fact, when lead counsel for the third respondent, Mr Tsatsu Tsikata asked the petitioners’ lead counsel to shut up, I expected the bench to compel him to withdraw the abuse and apologise. I was shocked when that was allowed to pass by the presiding Justice. Again, yesterday, had a member of the bench not reacted to draw Mr Lithur’s attention to his disrespect towards the bench, the presiding Justice might have allowed that to go unchecked, though he belatedly responded that he would have said the same. That also made to question if the presiding Justice has lost control of the proceedings. That is another subject for discussion after the case.

Even at Employment Tribunal hearings which is made up of a panel of three, two of who are not judges or lawyers but with good knowledge and understanding of industrial relations and employment legislation, no witness or counsel would show such utter disrespect in the tribunal (court) room. If counsel did misbehave s/he would be warned and if that continued, the Tribunal could report such unprofessional conduct to the appropriate professional body that s/he belongs to (the Law Society for Solicitors and the Bar Council for Barristers) or to the respective statutory regulatory body for further action.

The indiscipline in the court room from particularly counsels for the first and third respondents and occasionally from the lead counsel for the petitioners as well as the key witnesses for both the petitioners and first and third respondents through their sarcastic answers in the witness box, baffled me. That such behaviour could be allowed in the highest court of the land beggars belief.

It was interesting for the petitioners’ lead counsel to draw Mr Asiedu Nketia’s attention to the fact that his sarcastic answers were disrespect to the bench. When did he know this and why did he not do the same when his key witness was under cross examination in the witness box? I am not justifying Mr Asiedu Nketia’s misbehaviour and I condemn him for being disrespectful towards counsel who was cross examining him. Equally, Dr Bawumia was wrong and his counsel would have had more credibility if he had openly or privately advised his key witness to avoid giving sarcastic answers whilst under cross examination. Even after advice from the bench he continued to provide sarcastic answers throughout his cross examination.

Is what is happening at the SC an indication of the general indiscipline that has permeated every fabric of Ghanaian society or as Mr Addison described the lead counsels for the first and third respondents (when they objected to his style of re-examination of his key witness) as pampered kids who refuse to continue a game of football and take their ball away because they losing the match?

I do not recollect meeting Mr Tony Lithur in Ghana but I do know Mr Tsatsu Tsikata who can come across as intellectually arrogant, though when you get time to know him, he is a simple and friendly person. However, the behaviour of the two gentlemen in court can certainly be described as anything but what is expected from “learned friends”. To be blunt and not diplomatic, they are arrogant and have shown contempt to both the bench and their opponent in court. They have damaged Ghana’s image as well as the legal profession both at home and abroad. For these reasons, they should be compelled to offer unconditional apology to the bench and the lead counsel for the petitioners.

Let me make a quick observation regarding the Amicus Curiae application filed by Mr Benony Tony Amekudzi, seeking leave of the court to expunge the President’s name as the first respondent on points of law on Tuesday. I heard him argue his case before the Justices and he sounded as if was high on something. In fact, he was incoherent and ended up wasting precious court time. Though he had a legitimate case in law, his application was belated, uncalled for and unnecessary.

That also reminds me of the responses from the lead counsels for the first and third respondents to the application. Whilst the lead counsels for the petitioners and the second respondent left the decision in the able hands of the nine Justices, the two opposed the application, despite the presiding Judge indicating that the matter had legal locus.

In conclusion, let me also observe that when the history of the December 2012 Presidential Election Petition hearing is written, historians will record that it was full of material and evidence shortages, mislabelling and duplications by both the petitioners and first and third respondents. I was surprised to hear that the first and third respondents also submitted 4,941 affidavits and not 5,316 as claimed by their key witness. I hope the second respondent (Electoral Commission) will not repeat these errors. Is there any individual/s, organisation/s or institution/s in Ghana that can count accurately?

This case is not yet over and therefore do hope that lead counsels for especially, the first and third respondents will comport themselves well in court for the remaining days and to redeem their reputation. On some few occasions lead counsel for the petitioners has also shown some defiant towards the bench when their decisions have gone against him. So far the lead counsel for the EC, Mr Quarshie Idun has behaved courteously towards both the bench and his colleagues, the so-called learned friends. If this is their behaviour as learned men what would it have been if they were unlearned?

All lead counsels should note that though they find themselves at the opposite ends at the bench, they belong to the same fraternity. They are not enemies but from the same profession and who are rendering their expertise and services to their clients. I was surprised when I attended a function at the House Lords (the higher chamber of Parliament) and ended up in the restaurant to find two Barristers of the Queen’s Counsel who appeared before the Law Lords (the then highest court in UK, now replaced by the Supreme Court) on opposite sides of the same case at the bench sat at the same table having a meal at the end of the hearing. NDC and NPP members, professionals and advisers must learn to disagree to agree without acrimony.

I will be analysing Mr Asiedu Nketia’s performance in the witness box under cross examination in next article.

Kofi Ata, Cambridge, UK