Philip Addison, Counsel for the Petitioners, has blocked attempts by Tony Lithur, Counsel for President Mahama from using a ‘fresh’ supplementary affidavit filed on behalf of second respondent, Electoral Commission (E.C) in his cross-examination.
The court upheld this objection and ruled that allowing the use of the document would ‘roll back progress’ and open ‘floodgates’ for more of such affidavit.
Early on, Addison argued that the document - which is a print-out from the Biometric Verification Machine - related to one which was rejected on Monday by the court.
He described this latest attempt to spring up new evidence as ‘professional misconduct and unethical’.
It was meant to subvert ruling of the court regarding the mode of trial which said all parties must file affidavits and serve parties before the start of the trial, he noted.
He said the respondents were displaying they were “in the same boat” and not 'separate parties' because Mr. Lithur wanted to cross-examine Dr Afari-Gyan with documents filed by James Quarshie-Idun, Counsel for the EC.
In his arguments, Tony Lithur referred to a statement by Dr. Bawumia, the petitioner’s witness during cross-examination.
The witness said although it was their claim that people voted without verification, it was not their case that the violations were replicated in all polling stations.
This affidavit, Lithur said, was to be used to get a response from the witness, Dr Afari-Gyan to Bawumia’s assertion.
He continued that even if Dr Afari-Gyan had not been examined on this affidavit during his evidence-in-chief as argued by the petitioners, he [Lithur] was entitled to elicit information as long as it was relevant to his case.
He also asked that the court restrained Addison from interfering with his cross-examination. Addison had complained whenever counsel for president Mahama rose to object to him during Dr Afari-Gyan’s testimony. ‘What is good for the goose, is good for the gander’, he pointed out.
Taking his turn to respond to the petitioner’s objection, counsel for the E.C Quarshie-Idun denied that the document earlier rejected by the court was not included in this fresh affidavit.
The court yesterday ruled against Quarshie-Idun from tendering in evidence, a print-out from a BVM. But Quarshie-Idun gave out his understanding of the ruling.
It was not “a blanket embargo” against the tendering of all print-outs from Biometric Verification Machine, he said. It should be possible to tender a document if they believed it was relevant to their case, the lawyer argued.
He quoted portions of a book on Procedures authored by Kwame Tetteh which argued that a party must not be denied the merits of his case merely because of "blunders" committed during interrogation. He said unless the court has pronounced judgement it has the power to bend backwards and allow parties to rectify a mistake or oversight.
He wondered how the court would want to ‘shut out’ relevant print-outs of polling station register from the Biometric Verification Machine of about 50 polling stations.
The petitioners could not claim ‘surprise’ tactics because the Electoral Commission has in their pleading that everyone was verified by the BVM. To refer to print out of BVM later in the case should be expected he said.
He said during Bawumia’s evidence, there were aspects that they [respondents for the E.C] heard for the first time in court. It was ‘fresh evidence’ to them because they received the petitioners' affidavit later.
He said, the reason why the E.C did not supply this affidavit earlier was because they had to wait for Bawumia to finish his evidence before putting together an affidavit to be used as ‘rebuttal evidence’.
The panel of judges after a long break ruled in favour of the petitioners. The ruling noted the parties have all had ‘ample opportunity’ to submit affidavit evidence. The court has also allowed oral evidence from the witnesses of all the parties.
To accede to this fresh affidavit would ‘roll back progress’ and open ‘floodgates’ for more of such affidavit. It has been five months since the 2012 December elections, the ruling said.
The will of Ghanaians ‘must not be held back’. On this basis, Atuguba said the panel was ‘constrained to refuse the application’.
The panel also over-ruled Tony Lithur’s request for the court to restrain Addison from interference.
“He has the right to raise objection”, the ruling concluded.
