Tsatsu Tsikata lead Counsel for the third Respondent in the ongoing Presidential Election Petition will attempt to bring Freda Prempeh, Member of Parliament for Tano North and two others into the witness box for another round of intriguing cross-examination.
The three have their testimonies of alleged irregularities sworn in affidavits as prescribed by the court, but Tsikata is exercising the option of cross examination and must provide compelling reason why the three must be hauled into the witness box.
The two other respondents have also served notice they want to cross-examine petitioners’ witnesses who have come by affidavits evidence.
The Petitioners have already hinted they are against this application and will contest the motion.
The panel of Judges will there hear arguments from the Respondents why they seek to cross examine affidavits witnesses and also listen to the Petitioners why they think it is not necessary for their witnesses to be hauled before the witness box. The judges will then give a ruling.
That essentially is what will happen in Day 17 of the substantive hearing of the Election Petition.
950 The nine panel. of Judges have taken their rightful place on the bench.
Counsel for the parties introduce their team of lawyers to the bench.
The motion to seek leave of the court to cross examine affidavits witness is announced.
Tony Lithur is given the option by Atuguba to move his motion. He however cedes the option to the counsel for the third Respondent Tsatsu Tsikata.
Tsikata is up. He says the motion was filed on May 10. He names the witnesses who they want cross examined as follows; Kwabena Twum Nuamah Eugene Sackey, Freda Prempeh, Abdulai Hamin.
He draws the attention of the court however that they are not seeking to cross examine all of them but that they will pick and choose which one of them they deem necessary at a time.
Tsikata quotes portions of CI 74 which states that a person who has sworn an affidavit may be cross examined and re-examined as necessary.
He says these are witnesses whose testimonies are before the Lordships. He says what they are seeking leave to do is to cross examine those witnesses for the truthfulness of those witnesses to be determined by the court.
He says the rules of court makes it quite clear the process is of the essence of the trial. He quotes Section 62 (2) of the Evidence Decree to back his argument.
He says this provision does not give the witness the choice to or not to appear before the court to be cross examined. He says also that the provision does not also give the power to the counsel for petitioners to or not to make available their witnesses to be cross examined.
He says the truth of the matters to which these witnesses have testified to are important bases for which they must be brought before the court.
‘Why would a party who has proffered evidence to the court be so eager to protect them from examination,” asks.
It is also clear in the testimony of the main witness that they have also sought to rely on the allegations on those affidavits sworn by these witnesses.
He says the testimony of the witness which has been challenged will clearly be the subject matter of the cross examination of those witnesses.
He argues that each of the individual they are seeking to cross examine claim to have a background knowledge to what they have deposed to.
In the case of Abdulai Hamid he is the presiding officer and there is no better person to call to answer questions on what happened in his polling station.
He says in the case of the other three, these are themselves candidates in the elections and they testified to matters that took place at collation centres which are essential to the determination of the case that is before the court.
He posits that if indeed these were people who had personal knowledge of the matter, “we will find out from the cross examination whether they are telling the truth or not telling the truth.”
He submits that the court will be well served if people who claim to have personal knowledge of the facts to which they have deposed are cross examined.
He describes as strange the decision by the petitioners to kick against the cross examination of the witnesses.
According to him, the basis in opposing the motion is that there is a similar testimony for the second respondent and that cannot be good enough basis. The testimony provided by the second respondent is testimony which was in fact in response to the allegation made by the petitioners and cannot be deemed to be a response for all the petitioners.
“We cannot appreciate the evidence of the second respondent without hearing the witnesses. Neither the first second or third respondents can be held to account for what the petitioners witnesses have said,” he adds.
He says it is in the interest of fairness and justice to cross examine the witness to check the veracity of their claims.
He says they contest the claims of admission to certain facts. He says it is obvious there are differences in what is available in the affidavits of the petitioners as well as the respondents.
Tsikata dismisses claims by petitioners that cross examining the witnesses will unnecessarily delay the trial.
Tony Lithur counsel for the first Respondent as well as James Quarshie-Idun all associate themselves to the position of Tsikata.
Quarshie Idun however says they (EC) have not admitted or confirmed any of the acts deposed to in the affidavits filed by the petitioners.
Philip Addison is up. He says they are opposed to the application in so far as it concerns Kwabena Twum Nuamah, Freda Prempeh, Eugene Sackey and Peter Wule. He states however that they are not opposed to the cross examination of Abdulai Hamid and Fuseini Sophiano.
He says the order of the court made on second April 2013 was in pursuant of an expeditious trial. He quotes CI 74 to back his arguments.
He submits that the matters deposed to by the witnesses sought to be cross examined, except Abdulai and Fuseini are matters that are no longer in controversy to the court.
According to him, the second respondents swore affidavits to corroborate the incidents that happened in the polling stations to which these four witnesses have deposed to in their affidavits.
He quotes Paragraph 28 and 31 of the Respondents affidavits.
“It is in pursuant to these depositions that the Respondents filed their own affidavits,” he posits.
He says Amadu Sulley (EC) who deposed to the affidavits in paragraph 28 and 31 filed on 16 April 2013 attempted to strike out the allegations made by the witnesses who they are now trying to cross examine. He adds that the attempts to strike the allegations were refused by the court for good reasons.
He argues the first and third respondents were silent on the specific matter of the affidavits filed by those witnesses until the day this motion was filed.
He says the in affidavits filed by Eugene Sackey, a teacher and Parliamentary Candidate for the NPP it emerged at the collation center that there was over voting in one of the polling stations which therefore led to the annulment of votes.
He says in the affidavits of Peter Wuni he was the candidate for the Nalerigu Gambaga Constitution of the NPP and in four polling station there were allegations of over votes which necessitated the annulment of results.
He says in the case of Freda Prempeh the Member MP for Tano North in her affidavits there was a mix up. One vote less in the presidential count whilst in the parliamentary there was one vote more. The results of the parliamentary election were therefore annulled as a result of the one extra vote.
He says Kwabena Twum Nuamah also deposed in his affidavits that in one of the polling stations there eight voters more than the verification machine had verified for which reason the votes were annulled.
According to Philip Addison the second respondent in responding to these allegations admitted in their own affidavits that indeed these votes were annulled but that the constituency and national executives did not give permission before these votes were annulled.
Addison cites an affidavits filed by one Abena Charles an EC official confirming in her affidavits that votes in Kwabena Numah’s constituency were annulled and were not taken to account.
He says in another affidavits one Iddrisu Abbas, Returning Officer for Brekum also admitted that eight person did not go through the BVD and for which reason the votes were annulled.
In the case of Peter Wuni he says one Sylvester Kanye who is the second respondents’ Regional Director confirmed there were over votes in the polling stations alluded to by Peter Wuni and went ahead to confirm that the votes in those polling station were annulled.
He says then came the supplementary affidavits by Amadu Sulley and quotes portion of the affidavits in which Sulley explained that Kanye, the Regional Director was not informed before the annulment and neither were officials of the of the HQ informed before these annulments were made.
He argues forcefully that there is confirmation by the second respondent that the results in these polling stations were indeed cancelled.
“Wherever there has been over votes the results were annulled,” he adds. “It is the submission therefore that the matters the respondents seek to cross examine have been dealt with.
He expresses surprise that the second respondent who had early on admitted to these facts are themselves part of these motion.
“Who better to confirm these allegations made by these witnesses, than the very institution that conducted the election, “ he posits.
He says what purpose will cross examination these witnesses serve? In addition he says nowhere in any affidavits has the first and third respondents challenged the claims it made by these witnesses. It is only the Second respondent that has confirmed it.
“No useful purposes will be served to cross examine witnesses on matters that are not in controversy,” he says.
Addison says for Abdulai Hamid and Sophiano there is no confirmation by any of the respondents for which reason the two can be cross examined.
He also quotes section of the Evidence Decree to back his arguments. He says after the petitioners filed their affidavits the second respondent responded in admitted to the facts but the first and third did not file supplementary affidavits to contest them which meant they have accepted them.
Tsatsu is up again. He says the reference to the definition of what constitutes evidence as quoted copiously by Addison in the Evidence Decree rather supports his arguments that the witnesses must be brought before the court to ascertain the veracity of the evidence they have adduced before the court.
“The witnesses testified to things they claimed happened in polling stations. Therefore the evidence they provided ought to be subject of scrutiny,” he persists.
CI 74 and the need for expedition
He says CI 74 does not set aside the rules of Evidence and the procedures of the court.
According to him, the allegations of delay by Addison are somewhat disingenuous because he admits that in relation to at least two of the witness his argument for expedition does not apply.
“It is not for the petitioners to pick and choose which of the witnesses’ cross examination will delay or not delay the process,” he posits.
He says in respect of whatever the witnesses of the EC says they can apply for leave to cross examine the witnesses and test the veracity of the claims of those witnesses.
Quarshie Idun is up
He says he is hppy Addison mentioned the issue of over voting. He adds it is a matter that is pending before the court. These are issues pending a decision by his Lordship and for which reason the witnesses must be cross-examined to assist to arrive at the facts and a make an informed judgement. He says their affidavits was to question the annulment that took place and cannot therefore be said to be an admission or confirmation.
He says Cross examination will ensure light will be brought to what happened before the court.
Court rises Indefinitely
Presiding Judge William Atuguba says the court will rise indefinitely to consider the arguments for the motion before giving its ruling.
Presiding Judge William Atuguba refuses the application by the Respondents seeking to cross examine witnesses who came by affidavits. He says the court has enough evidence to make a firm decision and would not need extra information from the said witnesses to make a determination of the case. He says the court does not need “all those things” because it will lead to a protraction of the case.
Addison is grateful; Lithur says as the court pleases. He seeks clarification however if the court will not even consider the concession by the petitioners for the two others- Abdulai Hamid and Sophiano- to be cross examined.
Atuguba says it is not necessary.
Tsatsu proceeds with his cross examination.
Bawumia is shown an exhibit which he confirms are duplication in terms of labelling but denies it affected their analysis.
The witness’ attention is drawn to another polling station, on duplicated serial number allegation but Dr Bawumia is quick to say that can only be a mistake, and it has been corrected.
Subsequently, a number of polling station pink sheets are shown to the witness’ counsel. But Addison thinks the documents should be tendered before any question could follow.
Tsatsu obliges to tender them but there are other directions from Addison on how it should be presented.
There is misunderstanding on how the composite list should be presented, a judge advises that the list should be tendered in.
After a short argument, Tsatsu says he is not ready to tender a document belonging to the petitioners.
Tsatsu indicates he is not familiar with the process his Lordships have agreed to. He says it is his cross examination and cannot be made to tender documents belonging to the petitioners.
Philip Addison comes in. He says Counsel for the third respondent had insisted that he be provided with the list of pink sheet exhibits which have duplicate serial numbers. He says after going through all that painstaking process to get the list he does not understand why Tsikata will not want to tender that list before the court, a list to which he has already asked questions on.
Atuguba says he does not see why this will become an issue. He defers to the “polling stations” -the panel- to make a decision on it.
Citing Section 69 A of the Evidence Decree Presiding Judge says Tsikata can defer the tendering of the document till re-examination stage. He asks Tsikata to continue.