Sunday, July 28, 2013
Supreme Court shoots down motion on pink sheets
July 10, 2013 (Page 16)
THE Supreme Court on July 9, 2013 refused to grant a request from the petitioners in the presidential election challenge which prayed it to refer issues on 1,545 pink sheets to the international audit firm, KPMG, for further consideration.
The court, however, gave the petitioners the nod to cross-examine the Chairman of the Electoral Commission (EC), Dr Kwadwo Afari-Gyan, on the said pink sheets.
Following the exclusion of the 1,545 pink sheets in the final analysis of the KPMG report, the petitioners had prayed the court to grant their request in order to establish a comprehensive unique count of pink sheets they had filed, but the respondents objected to the request on the grounds that the petitioners’ request was not part of the original task of the KPMG.
Court has a primary duty to adjudicate the case
In a unanimous ruling, the court held that the report of KPMG was auxiliary to the court because the court had a primary duty to adjudicate the case.
Reading the ruling on behalf of his colleagues, the presiding judge, Mr Justice William Atuguba, said since the petitioners had already filed the said 1,545 pink sheets, any perceived difficulty could be cleared through the cross-examination of Dr Afari-Gyan.
Consequently, the court ruled that in order to facilitate the hearing of the petition, the petitioners should list the pink sheets they had been able to clarify out of the 1,545 pink sheets to cross-examine Dr Afari-Gyan on.
Other members of the panel were Mr Justice Julius Ansah, Mrs Justice Sophia Adinyira, Ms Justice Rose C. Owusu, Mr Justice Jones Dotse, Mr Justice Anin Yeboah, Mr Justice Paul Baffoe-Bonnie, Mr Justice N. S. Gbadegbe and Mrs Justice Vida Akoto-Bamfo.
So far, the petitioners have been able to identify 1,291 pink sheets after careful scrutiny.
Background to the exclusion of the 1,545 pink sheets
The audit firm, which was contracted by the Supreme Court on May 9, 2013 to conduct an audit of the pink sheets, submitted its final report on June 24, 2013 but indicated that out of the13,926 pink sheets filed by the petitioners, 1,545 were ineligible.
According to the KPMG report, some of the pink sheets did not have eligible polling station names, codes and/or exhibit numbers.
As a result, the firm formed its final analysis based on 12,381 pink sheets and for that reason the motion prayed the court to remit part of the issue it originally referred to KPMG for further consideration.
Arguments canvassed by Mr Philip Addison
Coming under Order 28 Rule 4 (3) (4) of the High Court Civil Procedure Rules, CI 47, lead counsel for the petitioners, Mr Philip Addison, asked the leave of the court to remit part of the issue originally referred to KPMG for the firm to:
• Determine the polling station names and codes of the 1,545 pink sheets with incomplete data and determine the unique count thereof with the aid of: (a) the further and better particulars filed by the petitioners; and/or (b) the official list of 26,002 polling stations established by the EC for the 2012 general election to be supplied to KPMG by the EC.
• The unique count of the 2,876 pink sheets that the KPMG’s report established as part of the set for the president of the panel but which were not contained in the set for the court registrar.
• To determine and produce the full list of the unique count of the aggregate of the 8,675 unique pink sheets, the unique pink sheets in the 1,545 pink sheets described in the report as having unclear data and the unique pink sheets in the 2,876 pink sheets of the set for the president of the panel which were not contained in the registrar’s set.
Application necessitated by incompleteness of the KPMG report
Making a case for the petitioners, Mr Addison said the application had been necessitated by the incompleteness of the KPMG report.
He also held that KPMG, in its report, had sought further directions from the court with respect to the 1,545 pink sheets, adding that the petitioners had fully identified the 1,545 pink sheets.
According to Mr Addison, nothing was said about the unique nature of the 2,876 pink sheets that were found in the president of the panel’s set of pink sheets which was used as a control in the KPMG audit.
Counsel informed the court that the petitioners were able to identify 871 pink sheets from Mr Justice Atuguba’s set of pink sheets, adding that if the unique counts were made, the number of polling stations filed by the petitioners would be made clear.
That, according to counsel, would greatly assist the court.
Mr Addison began to add the 8,675 unique pink sheets found in the registrar’s set to the 871 found in Mr Justice Atuguba’s set of pink sheets and an additional 1,291 captured in the 1,545 pink sheets in contention, plus 648 pink sheets used by the lawyers for President Mahama and the NDC to cross-examine the star witness of the petitioners, Dr Mahamadu Bawumia, which, according to the petitioners, were not captured in the KPMG report.
But Mrs Justice Adinyira stopped him and asked him to stick to the issues in contention, since his time was almost up.
The court had given each party 10 minutes to make a submission.
Following from that, Mr Addison submitted that the petitioners disagreed with the respondents’ affidavit in opposition which said what the petitioners were requesting for was beyond the mandate of KPMG.
President Mahama’s argument
Arguing on behalf of President John Dramani Mahama, who is the first respondent in the petition, Dr Abdul Aziz Basit Bamba said the petitioners’ application lacked merit and must, therefore, be dismissed.
He said his disagreement with the petitioners was premised on the fact that what they were seeking from the court did not form part of the original task assigned to KPMG.
According to counsel, the task set out for the referee was very specific and, therefore, there was no ambiguity.
He said the court’s order neither referred to further and better particulars filed by the petitioners, nor did it border on 26,002 polling stations.
Dr Bamba said the petitioners were requesting KPMG to help them identify the pink sheets.
But one of the justices, Mr Justice Yeboah, asked why KPMG had, in its final report, asked for further directions from the court, to which counsel answered, “It is an issue for the court to determine.”
Counsel accused the petitioners of shifting the burden of proof on the ground that they should and must have known the content of pink sheets before filing their petition.
Dr Bamba described the petitioners’ application as “incompetent” and further argued that the KPMG report was already in evidence.
Moving the EC’s affidavit in opposition, counsel for the EC, Mr James Quashie-Idun, told the court that “the petitioners, having contested the 2012 elections in all the 275 constituencies in Ghana and having appointed polling/counting agents for that purpose in all the said constituencies, were able to file the initial petition, the first amended petition, the second amended petition, several applications to this honorable court by motion and the affidavit sworn to by the 2nd petitioner and filed on 07/04/2013 to which the exhibits, the subject of the instant application, were attached”.
He said the instant application by the petitioners, who have the burden of proving their case, was belated and not necessary at that point in the trial, adding that it would cause undue delay in the trial.
Mr Quashie-Idun made his submission in less than five minutes and jovially donated his remaining time to counsel for the NDC, Mr Tsatsu Tsikata.
His comment, which was in reaction to an earlier directive from Mr Justice Atuguba, who gave 10 minutes to each counsel to make his submission, was met with laughter from the bench and the audience in the courtroom.
Mr Tsikata’s Case for the NDC
Associating himself with the earlier submissions by counsel for the President and the EC, Mr Tsikata said the 1,545 pink sheets had been captured in the KPMG report.
He said the remarks on whether or not they had unclear polling station names, codes and or exhibit numbers were all captured in the report.
He argued that the KPMG report comprehensively addressed the orders of the court and held that what the petitioners sought to do was “to effectively go outside the orders of the court”.
According to counsel, the petitioners had initially opposed the appointment of KPMG to audit the pink sheets but later changed their mind, adding that they had further opposed the order of the court to use Mr Justice Atuguba’s set of pink sheets as control.
What the petitioners sought to do, according to him, was to ask KPMG to work outside the terms of reference of the court, adding that such a request was of no relevance to the determination of the petition.
He said the evidence of a partner of KPMG, Nii Amanor Dodoo, explained how unique pink sheets could be derived from the data gathered.
According to counsel, out of the 8,675 unique polling stations, 329 polling stations fell outside the range of “P” series as filed by the petitioners’ star witness, Dr Bawumia.
The ‘P” series deal with duplicate serial numbers. The KPMG report indicates that 3,205 of the exhibits were in duplications, triplications, etc.
Counsel said the court would be addressed on that matter at a later stage to deduct those polling stations from the petitioners’ case.
Mr Tsikata said KPMG could not be asked to go back to further and better particulars because more than 300 “and still counting” exhibits were not part of the further and better particulars filed by the petitioners.
Recourse to the further and better particulars, according to him, would take the parties away from the terms of reference given to KPMG.
He, however, conceded that Mr Dodoo could be recalled to explain why some exhibit numbers in the KPMG report were different from the exhibits in court.
Mr Addison replies
In reply to submissions by the respondents, Mr Addison said none of the respondents had made allegations of some polling station names not being clear.
He argued that the 1,545 polling stations could be part of the evidence of the court, adding that their exclusion amounted to exclusion of evidence.
He had earlier used the phrase “suppression of evidence” to describe the exclusion of the 1,545 pink sheets in the KPMG’s final analysis, but Mr Justice Gbadegbe advised him to use the word “exclusion”, not “suppression”.
Mr Addison obliged.
It is not our fault
Mr Addison told the court that the issue of unclear polling station names and codes was not the fault of the petitioners but the doing of the EC.
He said the essence of the petitioners’ motion was to “tie all loose ends of the report”.
The court returned after the break to give its ruling.
Complaint on timing for the receipt of pink sheets
Mr Quashie-Idun told the court that he had received 14 lists of pink sheets without signatures from the petitioners in the morning and indicated that in one list of 59 pink sheets, 32 were found to have signatures.
Mr Justice Baffoe-Bonnie asked Mr Addison why that had happened because the court had, on July 8, 2013, directed the petitioners to hand over lists of all pink sheets on which they wished to cross-examine to the respondents.
He asked why that had not happened until that morning, to which Mr Addison explained that one of his colleague lawyers, Mr Akoto Ampaw, had stayed behind in court up till 10:30 p.m.
According to counsel, representatives of the respondents could not wait, to which Mr Justice Dotse retorted, “Obviously, they could not wait.”
Mr Quashie-Idun’s contention
Mr Quashie-Idun said the lists handed to him were pink sheets that had been captured in groups of 69, 140, 12, 64, 40, 59, etc, etc.
At that moment, Mr Justice Dotse asked Mr Addison if that was the entire list on which the petitioners wished to cross-examine Dr Afari-Gyan, to which Mr Addison said, “These are lists for no signatures.”
Mrs Justice Adinyira’s suggestions
Making an intervention aimed at expediting the disposal of the petition, Mrs Justice Adinyira suggested to the parties to sit and sort out the pink sheets that did not have signatures because that issue was not in contention.
She said the 905 pink sheets the EC said had no signatures should be sorted out by the petitioners, while those in contention should be put to the witness later.
Mr Quashie-Idun told the court that some of the pink sheets the petitioners claimed had no signatures, indeed, had signatures.
Mr Tsikata said 224 pink sheets listed as not being part of the 905 pink sheets without signatures were already part of the 905 pink sheets.
Disagreements over revision of list for pink sheets without signatures
A disagreement over whether or not the petitioners and/or the respondents should revise lists of pink sheets without signatures ensued for several minutes.
While the petitioners insisted the respondents should revise the list to avoid the situation of a list from the petitioners being rejected by the respondents, the respondents were of the view that it was not their duty to do that work.
It all began when Mr Addison got up and informed the court, after it had given its ruling, that his side had not received a feedback on the revised list of pink sheets it had handed over to the respondents.
Mr Quashie-Idun shot to his feet and rather informed the court that his side was waiting for the revised list of pink sheets which fell outside the 905 pink sheets which had already been listed by the EC as not having signatures of presiding officers.
I am Surprised
Expressing surprise at Mr Addison’s statement, Mr Tsikata said he had received contrary information which indicated that the petitioners were to revise their list and delete pink sheets that had been repeated as not having signatures of presiding officers.
One of the lawyers for the petitioners, Mr Akoto Ampaw, explained that his side had, indeed, said it was rechecking its list and said the respondents should also do a cross-checking and draw the petitioners’ attention to any repetitions.
He said for “some reason” the respondents were not willing to state which pink sheets had been repeated in the lists provided by the petitioners.
Intervention from the Bench
Mr Justice Dotse informed the parties that it was a matter of deleting the 905 pink sheets that had been conceded by the EC as not having signatures from the list, “otherwise we will stall proceedings at every stage”.
Mr Justice Gbadegbe said it was unfortunate that the parties were not agreeing on what he described as a “simple matter” and reminded all that the whole world was watching.
We are eager to assist
Mr Addison informed the court that the petitioners were eager to assist the court but indicated that they had asked for the list of 905 pink sheets three weeks ago, only to receive it on Monday.
He said his team had prepared a list of pink sheets not having signatures of presiding officers before the EC presented its on July 8, 2013 and, therefore, argued that the impression being created by the respondents was unfair.
Mr Quashie-Idun explained that he thought the petitioners were going to hand over a revised list after the list of 905 pink sheets had been given to them, but Mr Justice Yeboah advised counsel to do the cross-checking and address the court on it.
Mr Justice Yeboah also intimated that the court was going by the KPMG report.
This is not fair to us
Still standing his ground, Mr Tsikata said it was not fair for the petitioners to expect the respondents to cross-check a list that was 90 per cent irrelevant, but Mr Justice Yeboah told him it was his duty to do a background check.
Mr Tsikata responded that 90 per cent of the material was irrelevant and for that reason the petitioners should not expect his team to do their (petitioners) work for them.
Counsel told the court that the petitioners had, since April 2013, had the names of the 905 pink sheets and for that reason “we cannot respectfully do their revision for them”.
Realising that the respondents were not on the same wavelength with his team, Mr Addison indicated that the respondents should be bound with whatever list they (petitioners) handed to them (respondents).
You are not being fair – Mr Justice Baffoe-Bonnie
Turning to the petitioners, Mr Justice Baffoe-Bonnie told them that they were not being fair to the respondents because it was the duty of the petitioners to provide the list of pink sheets which was outside the already provided 905 pink sheets.
He said it was the responsibility of the petitioners to provide the list of additional pink sheets which had not been added to the list of 905 generated by the EC.
At that point, Mr Addison agreed with Mr Justice Baffoe-Bonnie and promised to provide the revised list.
Counsel told the court that his team was working on the list and expressed the hope the respondents would receive a copy before sitting resumed today.
Mr Addison promised to make the list of 1,545 pink sheets ready after Mr Justice Atuguba had requested him to do that.
The court will close at 2 p.m. today to make way for GTV to telecast live the semi-final match between Ghana and France in the ongoing FIFA Under-20 World Cup.
The presidential candidate of the NPP, Nana Addo Dankwa Akufo-Addo; his running mate, Dr Bawumia, and the Chairman of the NPP, Mr Jake Obetsebi-Lamptey, are the petitioners in the case.
The petition, which was filed on December 28, 2012, is alleging gross and widespread electoral irregularities of over-voting, persons voting without undergoing biometric verification, some polling stations having duplicate serial numbers and some presiding officers not signing pink sheets.
But the respondents have denied the allegations.