July 4, 2013 (Page 16)
The exclusion of 1,545 pink sheets from the final analysis of the KPMG audit report took centre stage at the Supreme Court hearing of the election petition challenging the legitimacy of President John Dramani Mahama.
A total of 1,545 pink sheets were left out of the final analysis of the 13,926 pink sheets filed by the petitioners on the grounds that the polling station names, codes or exhibit numbers on those pink sheets were not eligible.
At the Supreme Court’s sitting in Accra yesterday, Mr Addison told the court that there were ways of ascertaining the eligibility of those pink sheets, adding that, indeed, the petitioners had found 1,291 of those pink sheets legible after careful scrutiny.
Counsel argued that in the instances when there were polling stations without names, those polling stations could be ascertained with code numbers.
He also indicated that polling stations without code numbers could be identified by either names and/or codes, and vice versa, adding that the 1,545 pink sheets should have been included in the KPMG’s final analysis.
Petitioners’ Issue with KPMG Report
According to Mr Addison, the petitioners had filed 11,842 pink sheets and had, therefore, clearly been vindicated by the KPMG report which indicated that 8,675 unique pink sheets had been found in the registrar’s set of pink sheets.
Counsel said the KPMG excluded 1,545 pink sheets which it (KPMG) claimed did not have clear polling station names, codes and/or exhibit numbers and indicated that the reasons for the rejection of those pink sheets had been set out in the KPMG’s main report.
Page VII of the main report cited a number of acronyms which stood for No Polling Station Name (NPN), No Polling Station Code (NPC), Unclear Polling Station Name (UPN), Unclear Polling Station Code (UPC), No Exhibit Number (NEN), among others.
Responding to those remarks by the KPMG, counsel said polling stations without names could be ascertained with code numbers, while those with no polling station codes could be ascertained with either exhibit numbers or names, and vice versa.
Mr Justice Baffoe-Bonnie
One of the justices, Mr Justice Paul Baffoe-Bonnie, said he had initially been under the impression that the 1,545 pink sheets could not be identified because they were totally ineligible but Mr Addison explained that they were excluded by one reason or another.
Mr Justice Baffoe-Bonnie, at another stage of proceedings, also stated that he did not understand why the 1,545 pink sheets were excluded in the final report.
Every Pink Sheet was Captured in the Report
Lead counsel for the National Democratic Congress (NDC), Mr Tsatsu Tsikata, explained to the court that the KPMG captured 13,926 pink sheets served on the registrar by the petitioners, adding, “Every sheet in the registrar’s set has been counted.”
He further explained that the said 1,545 pink sheets were part of the 13,926 pink sheets counted by the KPMG.
Counsel expressed concern over what Mr Addison sought to do with respect to his stance on the said 1,545 pink sheets and indicated that if Mr Addison was of the view that the petitioners had been vindicated by the KPMG report, he should proceed and address the court on it.
A decision needs to be taken
Mr Justice Jones Dotse then took the parties through one of the pages of the final report which recommended that the court needed to take a decision on the said 1,545 polling stations.
Mr Addison explained that even 34 out of the 1,545 pink sheets which were identified as being part of the set for the President of the court were also excluded by KPMG.
According to Mr Addison, the petitioners later identified 850 pink sheets which had unique polling station codes, with an additional 655 being pink sheets which were also identified out of the 1,545 that had been declared ineligible by KPMG.
Rules Provide for Remedy
At that point, Mr Justice N. S. Gbadegbe informed Mr Addison that the rules of court provided a remedy for such situations, to which Mr Addison replied, “The opportunity is not lost.”
Lead counsel for President Mahama, Mr Tony Lithur, expressed concern over what he termed the introduction of “extraneous material” through other means, with reference to the petitioners’ identification of some pink sheets in the lot of 1,545.
Counsel said those pink sheets were not included in the report because they did not meet the criteria set out, adding that Mr Addison had ample opportunity to cross-examine the witness from KPMG, Nii Amanor Dodoo, when he mounted the box to testify.
Mr Lithur argued that Mr Addison’s posturing was drawing the court backwards and consequently advised his learned friend to address the court on his concerns.
However, Mr Justice Baffoe-Bonnie said an address was not the way out because there might be a way to ascertain the eligibility of those 1,545 pink sheets, as well as find out if there were duplications or not.
Mr Justice Anin Yeboah also advised Mr Addison to come by a formal application to make his case for the inclusion of the said 1,545 pink sheets.
He also reminded counsel that the KPMG report was now part of the court’s record.
Mr Addison responded that, that was the reason the petitioners had attempted to tender their comments on the final report.
Distinguish Between Two Matters
According to the President of the panel, Mr Justice William Atuguba, there was the need to distinguish the issues which, he said, were the actual number of pink sheets filed by the petitioners and whether or not the respondents had been short-served.
He also said the court was interested in finding out the exact number of polling stations and the effect on the status of the results.
Mr Justice Atuguba said he did not see Mr Addison’s problem because the exact number of pink sheets submitted to the registrar had been established.
Let us not suppress evidence
Mr Justice Anin Yeboah said, “Let us not suppress evidence in a very serious matter like this,” and indicated that KPMG had been conditionally discharged by the court.
Arguing further, Mr Addison said it was not the fault of the petitioners that 1,545 pink sheets did not have clear polling station names and/ or codes, adding that those pink sheets were filled out by presiding officers.
That notwithstanding, counsel intimated that those pink sheets could be identified and stated that the impression that it was the fault of the petitioners that those pink sheets were not clear was erroneous.
Making a case that the petitioners had, indeed, filed 11,842 pink sheets, Mr Addison told the court that there were 2,876 pink sheets in Mr Justice Atuguba’s set that were not in the registrar’s.
“Our analysis reveals 871 are unique in the president’s set,” he said, adding that 648 pink sheets used by lawyers for President Mahama and the NDC to cross- examine the star witness of the petitioners, Dr Mahamadu Bawumia, were not captured in the KPMG report.
Counsel further intimated that the said 648 pink sheets were neither captured in the registrar’s set nor the president’s.
Mr Addison said 8,676 unique pink sheets, plus the petitioners’ identification of 1,291 out of the 1,545 pink sheets, as well as the 871 unique pink sheets in Mr Justice Atuguba’s set and the additional 648 pink sheets used by President Mahama and the NDC to cross-examine Dr Bawumia, would all add up to 11, 485.
What are we Doing?
Mrs Justice Sophia Adinyira then intervened with a query, “What are we doing now?”
According to her, Mr Addison was addressing the court on those issues.
She requested Mr Addison to go on with the cross-examination but Mr Addison said he could not go on until the issues were tidied up.
Mrs Justice Adinyira, in response, said Mr Addison could only do his analysis through a witness or through an address to the court in which he could make deductions and suggestions.
Nonetheless, Mr Addison insisted that some pink sheets were excluded in the KPMG final report, but Mr Justice Atuguba assured him the records clearly indicated the petitioners had exceeded filing 11,000 pink sheets.
“If it is the understanding that we have filed 11,842 pink sheets, then we will proceed from there,” Mr Addison concluded.
Joggling of Pink Sheets
Mr Tsikata disapproved of what he termed “joggling of pink sheets” by Mr Addison and said it was not appropriate for Mr Addison to come to the conclusion that 11,485 pink sheets were unique.
He also stated that it was not appropriate for Mr Addison to say that 11,842 pink sheets had been established to have been filed by the KPMG report.
That, according to counsel, was because the respondents did not accept Mr Addison’s deductions and further advised Mr Addison to make reference to the documents in court to make those deductions.
Mr Tsikata said the report also indicated that some pink sheets were outside the range filed by the petitioners.
Mr Justice Atuguba then informed Mr Addison that all the materials he needed to proceed were before the court and, subsequently, advised him to reserve his deductions for the address stage.
Mr Justice Dotse also told Mr Addison that the court had made progress in the case and stated that the records were before the court for Mr Addison to refer to.
Responding to Mr Dotse’s suggestion, Mr Addison said the petitioners’ case would be limited because the respondents had not stated which pink sheets they did not have.
At that juncture, Mrs Justice Adinyira blurted out, “If they don’t have, we don’t care. We will go on”, and made reference to respondents’ refusal to state which pink sheets they had not received, adding, “It is their own business.”
She said once the petitioners had filed 13,000 plus pink sheets, it was enough for the court to proceed even if there were duplications and/or triplications.
The Crux of the Matter
For his part, Mr Justice Atuguba said the crux of the matter was the number of polling stations at stake and indicated that Dr Bawumia, in his evidence, had stated he used each polling station once.
Handover of Pink Sheets
Earlier, Mr James Quashie-Idun, lead counsel for the Electoral Commission (EC), had told the court that he had been handed large volumes of pink sheets by one of the lawyers for the petitioners, Mr Akoto Ampaw, at 10.35 that morning.
The short notice, according to him, had disabled him from giving the documents to the EC’s information technology staff to scrutinise.
Mr Addison clarified that the petitioners had intended to allow the EC to have enough time to study the pink sheets, while they resolved outstanding matters with respect to the KPMG report.
The court later rose to give parties time to sort out pink sheets that had been supplied by the petitioners.
Hearing was adjourned to today to enable the parties to complete the sorting out of pink sheets.