Nana Akufo-Addo, Dr Mahamudu Bawumia and Tsatsu Tsikata leaving the Supreme Court yesterday
The Supreme Court yesterday declined a request by National Democratic Congress (NDC) lead counsel in the ongoing Presidential Election Petition Tsatsu Tsikata, and others, who sought to cross-examine some witnesses of the petitioners, including two New Patriotic Party (NPP) Members of Parliament (MPs).
The nine-member panel threw out the motion asking the court to enable the respondents, including President Mahama and the Electoral Commission (EC), to cross-examine Freda Prempeh, MP for Tano North, Dr Kwabena Twum Nuamah, MP for Berekum East and four other witnesses of the petitioners, saying that they had enough information.
The motion on notice, seeking leave of the court to cross-examine the witnesses, was first filed by the ruling NDC (3rd respondent) and followed by President John Dramani Mahama, and the Electoral Commission who are 1st and 2nd respondents respectively.
The Ruling
The nine-member panel, chaired by Justice William Atuguba, held that with all the evidence available in the petition, the court did not need any further evidence.
He explained that the cross-examination had already covered every ground, saying, “They are all covered; we are saying that we have enough materials to cover. The evidence is flowing and it’s enough….that’s what we are saying. We don’t need all those things.
“We have considered the three applications for leave to cross-examine the various witnesses and have come to the conclusion that various types of evidence have been supplied on these matters, both by the evidence of the second petitioner in the ensuing cross-examination and the pink sheets and affidavits filed by the parties.
“We think that these and any further evidence would suffice to enable us assess the various factual matters involved without the protraction in the cross-examination of the witness covered in these applications. In the circumstances, the applications are refused,” the court held.
Witnesses
The respondents were seeking to cross-examine Kwabena Twum Nuamah, NPP MP for Berekum East, Eugene Sackey, Freda Prempeh, NPP MP for Tano North in the Brong Ahafo Region and Abdulai Abdul Hamid who all swore affidavits as witnesses for the petitioners.
The witnesses had alleged in their affidavits in support of the petition that the Electoral Commission (EC) annulled some of the polling stations’ results in their constituencies where there were over-voting and other alleged irregularities.
The Motion
The NDC motion filed by its lead counsel Tsatsu Tsikata could not be moved on May 14 because President Mahama and the EC had just filed similar applications and the court’s registry had given President Mahama and the EC returning dates of May 16 for their motions to be moved.
As a result, the court pushed the NDC motion to same day so that all the three motions could be moved at the same time.
Before the applications were moved, the court directed that once they were on the same subject-matter, the respondents should consolidate the motion before moving, after which other counsels could make addresses.
Tony Lithur, lead counsel for President Mahama then told the court that he would prefer Mr. Tsikata to move the motion.
Mr. Tsikata then took the floor advancing his argument to the effect that inviting the witnesses to be cross-examined would serve the interest of justice since they would help the court to ascertain the truth.
“The truth of the matters that each of those witnesses has testified to before this court is a very important basis. There is no allegation before you that any of those witnesses is not available for cross-examination…and we may well wonder why a party which has proffered the testimony of certain witnesses be so eager to protect them from cross-examination.
“It is also clear that in the testimony of the main witness of the petitioners, they have also sought to rely on the allegations in those affidavits, so the testimony of the main witness which has been challenged is very much the subject matter of, not only the continued cross-examination of that witness, but would clearly be the subject matter of the cross-examination of these witnesses,” he added, in reference to Dr. Mahamudu Bawumia, a principal witness in the case.
Mr. Tsikata noted that “it is also clearly the case as we take each of those individuals that they claim to have personal knowledge of the matters in respect of which they have deposed to their affidavits.
“In the case of Abdulai Abdul Hamid, he was actually a presiding officer at a polling station in respect of which there has been testimony before this court. There is no better person than Mr. Abdulai Hamid-the presiding officer at that polling station-to provide evidence, and the petitioners did provide his evidence and they should not run away from the cross-examination of their own witness…”
He also said that the evidence of Kwabena Twum Nuamah, Eugene Sackey and Freda Prempeh were important, adding, “If indeed, these are people who have personal knowledge of the matters, then under cross-examination, we would be able to establish whether they are telling the truth in their affidavits or they are not telling the truth.
“It is our submission that this court and the process before this court would be well served by obtaining testimony from people who claim to have personal knowledge of the fact to which they depose.”
He described the petitioners’ opposition to the application as “somewhat strange, because these are their witnesses and they have deposed to affidavit filed on the 13th of May and deposed to by Dr. Bawumia.
“Essentially, their claim in opposing the application is that there is some other testimony before this court from the second respondent. We ought to be allowed to cross-examine them, and it’s clearly in the interest of fairness and of justice in this proceeding that they be cross-examined to test the veracity of the allegations that they have (made).
“There is no basis in the affidavit in opposition for denying us our entitlement to cross-examine witnesses on evidence that is being put before you,” he held.
EC Supports Tsikata
James Quarshie-Idun, representing the EC, said the subject matter of the evidence of the affidavit that they were seeking to cross-examine the deponents on, was not pleaded either in the original petition, the first amended petition or the second amended petition.
“We stated this in paragraph 12 of the affidavit sworn to by Amadu Sulley, Deputy Chairman of the second respondent on 16 April, 2013. If these material facts had been pleaded, we would have had the opportunity of responding to them in our answer or amended answer.”
Addison’s Opposition
In his response, Phillip Addison, lead counsel for the petitioners, vehemently opposed the respondents’ attempt to cross-examine the witnesses.
He said matters under discussion were no longer in controversy since the EC, in its own affidavit, had confirmed the cancellation.
He told the court that the petitioners were not opposed to the request to cross-examine Abdulai Abdul Hamid and one Fuseini Safianu who were said to be Returning Officers during the election.
Mr. Addison told the court that the EC at some stage in the trial tried to have the petitioners’ pleadings in respect of the subject-matter struck out but the court refused and since that move failed, the commission never gave any indication they were contesting the issue.
He said the matters that the EC is seeking to cross-examine the witnesses on were not in dispute, asking, “What purpose does cross-examining the witness serve when the EC in its own affidavits show that some polling station results were annulled?”
He also held that both President Mahama and the NDC did not challenge the piece of evidence on the annulments and that no supplementary affidavit was filed by the 1st and 3rd respondents after the EC had filed their response and therefore the court should dismiss the application.
By William Yaw Owusu & Raphael Ofori-Adeniran