Fireworks In Court

The Supreme Court on Tuesday, sitting on the petition filed by New Patriotic Party (NPP) presidential candidate, Nana Addo Dankwa Akufo-Addo and two others challenging the declaration of John Mahama as president by the Electoral Commission (EC), was inundated by a horde of applications filed by the parties.

Currently, the nine-member panel, chaired by Justice William Atuguba, is hearing applications filed by the Electoral Commission and the second respondent in the petition, President Mahama, asking the petitioners for ‘further and better particulars’ of the 4,709 polling stations where the petitioners are alleging irregularities in the just-ended general elections.

When the long back-and-forth arguments were concluded, the petitioners also moved another application for interrogation, asking the court to order the second respondent, the EC, to furnish them with the list of voters, including peace keepers, students and embassy staff who were registered abroad.

The EC had claimed that over 200,000 people were registered abroad whereas earlier reports suggested that they were far less than 5000.

The highest court of the land has already disposed of an application for joinder that was filed by the National Democratic Congress (NDC) to be part of the case, ruling that the NDC was an interested party to the petition and had thus automatically become part of the case.

With the filing of the applications, the court would have to conclude and make decisions before the main petition could proceed.

There were heated arguments as the applications were moved and the issue of whether it was right for the court to hear counsel for the NDC when the third respondent had not filed any answers to the applications also came up.

James Quarshie-Idun, supported by Anthony Dabi and Stanley Amarteifio, representing the EC, was the first to move his application for further and better particulars from the petitioners: Nana Addo Dankwa Akufo-Addo, his running mate, Dr. Mahamudu Bawumia and NPP Chairman, Jake Otanka Obetsebi-Lamptey.

He said under Rule 69 (a) sub rule 4 of the Supreme Court Amendment Rule 2012 of C.I. 74 enjoins the petitioners to provide ‘further and better particulars’ to the applicant for the case to move on.

“We made specific references filed by the petitioners in respect of which we are asking for orders to ask the petitioners to provide us with further and better particulars.”

He said the EC was requesting the petitioners to provide the names of and codes of polling stations where the petitioners are alleging that voting took place without prior verification.

He said the EC needed the petitioners to furnish them with the polling stations where different results were recorded with the same code numbers.

Mr. Quarshie-Idun needed particulars of the polling stations (in the form of names and codes) where the petitioners are alleging that there were widespread instances of no signatures on the sheets given to the party agents.

Justice Sulley Gbadegbe, a member of the panel, then asked counsel for the EC to refer to the affidavit and not the petition. Mr. Quarshie-Idun replied, “I answered the petition because that contained the facts. I could not answer the affidavit.”

After a few minutes of arguments, Justice Atuguba said, “He (Justice Gbadegbe) has taken notice so you can proceed.”

Mr. Quarshie-Idun then said, “We are entitled to know which are the 4,709 out of the entire over 26,000 polling stations so we know how to answer them.”

He argued that once the petitioners were able to provide further and better particulars for three polling stations where they claimed the votes of Nana Akufo-Addo were reduced and that of President Mahama padded, they should be able to provide the rest of the 4,709.

He asked the court to consider ‘persuasive force’ to get the petitioners to furnish the EC with further and better particulars.

“We will be taken by surprise if they do not indicate to us the names of the polling stations and their codes. We are asking them to give us particulars of the facts.”

Tony Lithur, assisted by Dr. Abdul Bassit Aziz Bamba, representing President Mahama, also moved another motion for further and better particulars since the court had indicated that they wanted to take the two applications together before the petitioners put in an opposition.

Mr. Lithur said that they filed the application under the same rules used by the EC to make the request.

He cited cases to buttress his point and that compelled Justice Anin-Yeboah to find out from counsel whether a ‘petition’ can be deemed to be a ‘pleading’.

Mr. Lithur said, “Petition is not a pleading but the general rules of litigation are no different,” before Justice Atuguba also wanted to find out the effect of counsel’s argument.

The President’s counsel said, “A petition in terms of articulating a person’s cause of action is not different from the claims.

“In order to ground a cause of action, it is essential to isolate and identify the polling stations in which the allegations of irregularities occurred.

“They must be identified by name and code since they form the petitioner’s cause of action.”

“By their own pleadings, there is a manner in which polling stations are identified and they must provide the codes as provided by the second respondent (EC).

“This petition is about numbers and essentially it is a conglomeration of numbers that the petitioners have picked which they are seeking to annul.”

He said the courts should order the petitioners to provide for each polling station the number of votes being the subject matter of fraud, irregularity or malpractice.

If that was done by the petitioners, he argued, it would help to “narrow down the issues”, adding, “It helps us to determine the actual number of witnesses.”

When Justice Atuguba alerted counsel to the fact that he was re-arguing the motion, Mr. Lithur said, “They (petitioners) did not provide sufficient particulars and on a good day I would have asked that this petition be struck out.”

Justice Atuguba then asked if that was what Rule 69 allows a party to do and counsel said, “I said on a good day, the petition is not giving guidance about the exact nature of the case.”

“They are seeking to do ambush litigation. This is not guerrilla warfare where you can hide to do your own things. It is not an ordinary litigation. It is firmly grounded in Article 64 of the Constitution and the rules of court that seek to operationalise that power must be seen to be assuming those powers.”

Philip Addison, supported by Gloria Akuffo, Frank Davies, Alex Quaynor, Akoto Ampaw, Kwame Akuffo, Nana Asante Bediatuo, Godfred Yeboah Dame, Egbert Faibille and Professor Kenneth Attafuah, then opposed the application for further and better particulars of the EC and President Mahama.

Responding to the EC, Mr. Addison said that the commission filed an answer to the petition in which case it answered every paragraph and was able to do so because of the High Court Rules.

“We set out the material facts for which we are relying on. We set out the nature of the irregularity. All we are waiting for is to give evidence.”

He said that ground 3 of their petition sets out the particulars of violations of irregularities, adding, “The categorical denial of some of these allegations were in the second respondent’s (EC) answers.”

He said that the EC had custody of the originals of the pink sheets and could not turn around to claim them from the petitioners.

“They must have verified from the sheets before declaring the results.”

He said that there could be no question of surprise if the applicants were not given further and better particulars.

Justice Paul Baffoe-Bonnie then asked Mr. Addison to address the court on the fact that the petitioners had specifically mentioned 4,709 polling stations and those were what the applicants were seeking to be given details of. Counsel said, “That will amount to giving the respondents the evidence we intend to give in this court.”

Justice Rose Owusu then asked what was the purpose of the petitioners providing details for three polling stations in which they said the first petitioner’s votes were reduced and those of the respondent’s votes padded.

Mr. Addison responded that those allegations would not be determined based on just looking on the plain sheets; adding that but the rest which were not given were there on the plain sheets which they intended to use as evidence.

Justices Annin-Yeboah, Jones Dotse and Gbadegbe all cut in at some points to ask why the petitioners had failed to give specific details of the 4,709 polling stations and Justice Gbadegbe was concerned about the practice whereby all the legal teams were resorting to arguments set out in the petition instead of the affidavits filed.

Mr. Addison replied, “We have set out the facts in our affidavit. What we are being asked to disclose will amount to giving them the evidence that we are going to provide.”

Turning his attention to President Mahama’s request, counsel said, “The first respondent did not write to us for further and better particulars as it is the practice and must be struck out.”

When asked by Justice Owusu about what Rule 69 (a) (4) of C.I.74 meant, counsel said, “Indeed second respondent (EC) wrote first to the petitioners before bringing this application.

“There are categorical denials by the first respondent and they said they will put the petitioners to strict proof. That burden will be discharged by evidence and now that you say you will put the petitioners to strict proof you come back to say that you want further evidence which we intend to use.

“They say the petition lacks any basis in law or fact yet they are here to ask for further and better particulars.”

He said the nature of the alleged offences had been set out in the petition, saying, “What we have given the respondents is enough. It has enabled them to put up comprehensive answers.”

When Tsatsu Tsikata, representing the NDC, sought to make an argument, the court said it was taking a short break.

After the break, Mr. Tsikata got on his feet to make an input since the NDC is an interested party and therefore had to be heard. But Mr. Addison objected, saying Mr. Tsikata had not filed any application showing the NDC’s interest in the two applications.

The NDC counsel said as indicated in their answer after being asked to join the case, they intended to apply to the court to strike out certain pleadings in the petition which “are offensive” to the rules or ask the petitioners to provide further and better particulars as the EC and President Mahama had done.

“He better allow us to be heard because we have already served notice. We will apply to the court because the petition lacks adequate particulars.”

Mr. Addison cut in to ask the court, “In what capacity does counsel make this submission? If he wants to raise any argument, he should file it on notice so that we can respond to it.”

“We are no more sure what the rules of the court are. They keep springing surprises on us.”

As the argument became heated, the court adjourned the proceedings for the judges to decide on whether or not Mr. Tsikata could be heard without a formal application filed.

The judges returned and ruled in an 8 -1 majority decision that Mr. Tsikata could not be heard.

The EC then came in to respond on points of law to the petitioners’ objection and Mr. Quarshie-Idun said the petitioners had raised an allegation of fraud but Mr. Addison rebutted that.

Tony Lithur said that there was nowhere in the first respondent’s submission they asked for particulars of voter turnout, stressing, “Particulars are general but we need specifics.”

The court then called another application in which the petitioners wanted to seek leave of the court to order the EC to serve them with the list of voters registered abroad.

In the application for interrogatories, the petitioner specifically asked the EC for particulars of Ghanaians serving abroad including foreign service officials, students on government scholarship abroad, Ghanaians working in international organizations and service personnel returning on duties.

Mr. Addison said, “We have filed this application due to the second respondent’s answer to our petition on the subject of voters registered abroad.”

He said in answer to the petition, the EC had given different figures to which they needed clarity, adding, “We are saying that the difference of those the EC said they registered is far less than we are being told.”

He said that the petitioners were invoking the inherent jurisdiction of the court for the application for interrogatories.

Mr. Quarshie-Idun said that the petitioners’ application was premature, adding that even the application for further and better particulars had not yet been determined.

Counsel wanted the court to look at the rule for inspection and production of document in the same vein as the application for interrogatories but Justices Annin-Yeboah and Gbadegbe said the rule was different and should be looked at separately.

Mr. Tsikata got up once again to request that the NDC be allowed to respond to the petitioner’s application, saying that with the nature of interrogatory application, all the parties in the matter needed to be heard.

Justice Baffoe-Bonnie replied that the application strictly concerned the EC and they could have gone ahead to answer the questions raised in it.

Mr. Tsikata replied, “I don’t see why a party in a proceeding can be isolated in the application to be heard and not be asked to respond.”

Tony Lithur, in support, said, “We should be allowed to contribute to this application. To constrain us to constantly file an application on any issue cannot be the best.”

Mr. Addison told the court that they were not blocking the parties from making an input into the matter but were asking them to follow the rules of the court by filing officially.

The court again decided to give a ruling on whether or not the NDC could be heard, and in a 6-3 majority, the court said the NDC could be heard but should file officially.

Justices Baffoe-Bonnie and Annin Yeboah had ruled that the NDC could not be heard while Atuguba said Mr. Tsikata could be heard on points of law now.

The remaining Justices said the NDC could be heard but needed to file on notice.

The case was adjourned to tomorrow for the NDC to be heard on the petitioners’ application for interrogatories and also for the court to decide whether to grant the separate requests of the EC and President Mahama, asking the petitioners to supply them with further and better particulars.