Wednesday, February 27, 2013
Petitioners granted permission to file amend petition
February 8, 2013 (Front Page)
The Supreme Court has granted permission for the amendment of the petition which is alleging that irregularities were recorded at 11,916 polling stations during the conduct of the December 7, 2012 presidential election.
An original petition dated December 28, 2012, had cited what the petitioners termed “gross and widespread” irregularities in 4,709 polling stations but an amended petition, dated January 31, 2013, increased the number of polling stations where alleged irregularities took place to 11,916.
In a unanimous decision, nine justices of the Supreme Court gave the nod to the petitioners – the presidential candidate of the New Patriotic Party (NPP) in the December 2012 election, Nana Addo Dankwa Akufo-Addo; his running mate, Dr Mahamadu Bawumia, and the Chairman of the NPP, Mr Jake Obetsebi-Lamptey, to amend the petition.
As a result of the court’s authorisation for the amendment, the petitioners have been given two days to officially file the amendment, and an additional seven days to provide “further and better particulars” on the said amendment.
The “further and better particulars” as sanctioned under Rule 69 A (4) of the Supreme Court Amendment Rules, 2012 (C.I 74) are expected to be served on the respondents in the case, President John Dramani Mahama, the Electoral Commission (EC) and the National Democratic Congress (NDC).
Under the circumstance, the petitioners are expected to disclose the full names and codes of 11,916 polling stations where the alleged electoral glitches took place.
They are also obligated under the Rules of Court to disclose the names of 28 locations where they alleged elections took place outside the known 26,002 polling stations.
The nine-member panel, presided over by Mr Justice William Atuguba, unanimously allowed the amendment after counsel for the petitioners, Mr Philip Addison, had prayed the court to grant it, following the discovery of more anomalies during the elections.
Other members who allowed the petition to go into the court’s records 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.
Motion for amendment
Moving the motion to amend the petition, Mr Addison submitted that his clients had not been served with an affidavit in opposition as earlier indicated by the NDC.
At that point, one of the lawyers for the NDC, Mr Samuel Cudjoe, explained that the NDC did not intend to oppose the motion for amendment.
For his part, counsel for President Mahama, Mr Tony Lithur, also stated “we do not intend to oppose the application”.
Continuing with his motion for amendment, Mr Addison explained that the amendment was intended to correct typographical and clerical errors.
“The amendment became necessary because of the discovery of new violations and malpractices from 4,709 to 11,916 polling stations,” he stated.
He further pointed out that the amendment had to do with figures. He also gave an assurance that the petitioners would abide the court’s February 5, 2013 ruling to provide further and better particulars on the irregularities, “so there will be no need for additional applications”.
Mr Addison, therefore, prayed the court to allow his clients to amend the petition.
EC’s opposition and court intervention
The lead counsel for the EC, Mr James Quashie-Idun, opposed the petitioner’s application and indicated that the petitioners were expected to file proper requirements the court gave on February 5, 2013.
He was referring to the court’s order to the petitioners to furnish the respondents in the case with further and better particulars on the alleged irregularities.
Mr Justice Gbadegbe then interjected and said “if they do not provide the particulars, you benefit. If amended, they are by law required to adhere to the order of the court.”
At that point, Mr Addison got to his feet but Mrs Justice Adinyira intervened and said, “Mr Addison, you have made your point and we appreciate your point.”
The court went on a break from 11:05 and returned at 12:10 p.m., to deliver its ruling, granting the amendment.
Before the court read its decision on the motion for amendment, Mr Justice Atuguba said to the packed courtroom, “our break was not a health break.”
His comment was followed by an uproar from the courtroom.
NDC’s motion for further and better particulars overruled
The third business of the day involved the NDC’s motion for further and better particulars in respect of paragraph 27 of the petition.
Paragraph 27 states, “The petitioners say that in consequence of these statutory violations and infractions, as well as irregularities and malpractices, the results declared by second respondent in favour of first respondent were far in excess of votes cast in his favour, thereby, subverting the sovereign will of the electorate contrary to the preamble of the Constitution, Article 1 (1) and Articles 42 and 63 (3) of the Constitution, 1992”.
Prior to his moving the motion, Mr Cudjoe had prayed the court to allow the NDC to move its motion for further and better particulars for a separate order to avoid the situation where the NDC would not be allowed to object to issues at a point in the trial because it did not move its motion for further and better particulars.
The following transpired between Mr Cudjoe and the Bench:
Mr Justice Atuguba: Are you saying you will not be served with the court’s orders?
Mr Cudjoe: The consequences of not applying for the particulars can affect us.
Mr Justice Dotse: Are you saying you cannot rely on particulars when provided?
Mr Justice Yeboah: The order will be served on all parties.
Mr Gbadegbe: Order 1 Rule 2 of C. I. 47 ensures a speedy and effective justice in order to avoid delays and multiplicity of proceedings. If you continue like this, how can we proceed?
Mr Justice Gbadegbe then affirmed, “We are in charge. Proceed.” His comments drew a huge laughter from the courtroom, but Mr Cudjoe continued and said “the court should make an order”.
Mr Justice Yeboah then queried, “Are you saying this matter won’t end if we do not rule?”
“Your application is not in accord with the rules. We are here to do justice. We know the passion in this case but remember we are the judges and you are lawyers,” Mr Gbadegbe stressed firmly.
Mr Justice Gbadegbe insisted Mr Cudjoe moved on with his application which was not captured in the court’s February 5, 2013 orders to which the latter obliged.
Mr Cudjoe’s case for NDC
Counsel said his clients were asking the petitioners to provide particulars of results which were far in excess of votes cast in favour of the President.
Mr Addison responded and explained that the answer to paragraph 27 was captured in paragraphs 22 and 23 of the petition. He further stated that paragraph 27 was only a conclusion of paragraphs 22 and 23.
According to Mr Cudjoe, paragraph 23 of the petition talked about deduction and annulment of some votes, adding that it was on that basis that “we are asking for excess votes as contained in paragraph 27 of their petition”.
Mr Justice Atuguba explained that it was the contention of the petitioners that the excess votes amounted to votes that had to be invalidated.
“That is so my Lord,” Mr Addison stated, while Mr Justice Dotse explained that paragraph 27 was the conclusion.
When it became clear that Mr Cudjoe would not withdraw his motion, the court overruled him and accordingly dismissed his application for further and better particulars with respect to paragraph 27 of the petition.
President withdraws motion
Immediately after the court’s ruling on the NDC’s motion, Mr Lithur withdrew the President’s interrogatories with respect to the original 4,709 polling stations with the explanation that he intended to re-apply after studying the additional 7,207 polling stations.
The court granted his request, struck out the interrogatories, and accordingly gave the President the liberty to re-apply when the need arose.
Mr Addison drew the court’s attention that the rules of court were silent on what happens after all documents in the case had been filed and served on all parties and, therefore, pleaded for the court’s direction.
The court, through Mr Gbadegbe, gave the parties the liberty to confer while the Bench conferred on the next line of action to be taken.
In offering further clarification on the issue, Mr Justice Atuguba read out Order 69 C (1) of the Supreme Court Amendment Rules, 2012 (C.I. 74) which basically states that the court shall hear the petition within 15 days after service of the petition on the respondents.
After Mr Addison’s reminder to the court that the court did not give the number of days to the respondents to respond to the amended petition, the court gave the respondents 14 days to respond after further and better particulars had been served on them.
The court also stated that it would give a date for the hearing of the substantive matter after the parties in the case had provided answers to each other.