The Case for Justice; When the River leaves its Course.

There is no requirement for a party, to provide in a particular format, all the evidence it intends to use in a claim. At the start of a court case, parties are supposed to gather and exchange, all the relevant information they intend to rely on. This will usually include affidavits [statements made under oath and held to be true], evidence and witness lists. This collection called a “bundle” is prepared by all parties. It is designed to stop any party from trying to vary their case in the middle of a trial or hearing.

The principle on evidence is simple; Always bring more than you need, but you do not have to use all that you bring.

It is a fact, that the petitioners have provided details in excess of the eleven thousand documents they are referring to in their claim, in an electronic format. The court has it, the first respondent has it and the second and third respondents also have it.

In addition to that, they prepared evidence and references they intended to use, in hard copies, in the manner they intended to approach their case. This “ bundle”, some in the form of photocopies of certain documents, have also been handed to the court and all the respondents. The problem which is now being pursued in court, is the manner in which the petitioners have put their bundle together. An issue which was not lost on the judges, the first to go down that line was Counsel for the First Respondent.

To get a better understanding of the issue, There are also two things, that we need to understand. First; Dr Bawumia, in spite of being one of the petitioners, is currently on the stand, as an expert witness [ a person who is skilled, proficient or knowledgeable in his field and capable of giving the court a credible and reliable account or a view on a subject ]. Second; Dr Bawumia did not put together the “ bundle” which is now being used in court. That would have been done by the legal team, after gathering all the relevant information and would have been put together, in a manner that they believe will get their point across effectively.

The work of Dr Bawumia; the analysis on the election, forms part of the evidence being relied on by the petitioners to make the case. The analysis is not the “ bundle” and the “ bundle” is not the evidence. The “bundle” contains among other things, the evidence or a list of it, affidavits and other relevant material or references, in a manner the NPP legal team intend to deliver the petitioners’ case.

[ Confused? ] Let’s break it down further. There is no requirement under the law, against having several copies of a single document in a “bundle”. If you intend to make several references to a single document in the progress of a case, you can make as many copies as you want, of that document and place them at the points in the bundle where those references will be made. It shows proficiency in your case preparation and stops the tedious practice of saying; “shall we go back to… “.

[…got it?] Right! Let’s move on. Now, at the start of the case, we saw Mr Addison [counsel for the petitioners] outline the petitioners’ case. Their challenge was outlined in three parts; over-voting, voting without biometric verification and unauthenticated electoral forms. They indicated that in each case, the action either involved or constituted an irregularity, a statutory violation or a malpractice and affected the result of the Presidential Elections 2012 [That is their case in a nutshell].

With such a brief, and owing to the volume of information needed as references, The NPP legal team prepared a separate set of documents for each claim and where a single document will be needed again elsewhere, a separate copy was made and listed for that purpose. This was done so that if the claim for [example] over-voting was dealt with and a document from that pack was needed, they had a copy ready and at hand. It is a system used by well-prepared lawyers to ensure they touch on every point they intend to make in court.

Mr Lithur [counsel for the First Respondent] discovered these listings in the “bundle” [remember, the bundle is not the evidence] and sought to discredit Dr Bawumia with it. Mr Lithur first tried to condition the court by saying, the court should not use the information on the CD Rom, because what he was about to do, could not be achieved by looking at the information on the CD Rom. Which was true, because the CD Rom contained only one instance of the copy being referred to. As it happened, the judges checked the CD Rom. When he was asked light-heartedly by the Lead Justice, whether he [Mr Lithur ] is suggesting that the petitioners have deliberately made copies of a single document and attempting to pass them off as separate copies, he replied: “That is what I am suggesting…”.

The manner in which “references” to evidence is put together in a “bundle” does not constitute evidence in itself or have relevance to a claim. This prompted the Judges to direct, that all questions on the number of times, copies of any single document appears in the “bundle“, should be written down and sent to all parties with copies to the court. They knew Dr Bawumia was being questioned about how the “bundle” was put together, rather than the “evidence” itself.

There was a real danger of Mr Bawumia misconstruing and perjuring himself, based on how the questions were being framed; that Mr Lithur has somehow, “discovered” multiple copies of the same documents in the “evidence” rather than the “bundle”. As he was not allowed to refer to his data, Dr Bawumia was told by Justice Atuguba in fairness, that he reserved the right not to perjure himself. In other words, he could refuse to answer any question on the “duplications” if he was not certain.

The cross examination continued along the same lines of “duplicate references” to evidence, with Mr Idun, Counsel for the Electoral Commission. This prompted the judges to direct, that all issues of “duplicate copies” should be left to them. In other words they have heard enough and have reached a conclusion on that issue. That still did not stop that line of questioning.

Now we have, the “Renowned” Tsatsu Tsikata on the case, after famously “loosing his rag” at the “Ever Calm” John Addison. A classic stand-off; The Shotokan Exponent versus the Aikido Maestro; ferocious aggression versus formidable lethal fortitude.

We have a CD Rom with all the information, so why are we counting photocopies of documents on that CD Rom? The fact that a court indulges a party in a direction, that it has clearly instructed parties not to go, does not mean it now holds some relevance to a case. But one thing is certain, when nine of the world’s finest legal thinkers make a decision to allow an action, there is bound to be something in it. When a river leaves its course, it still travels downstream.

For me, Chief Justice Mrs Georgina Theodora Wood, is one of the most brilliant legal personalities ever. She has single-handedly transformed the lives and the direction of the legal system and the nation. She has made a mark and you cannot take that away from her. She is an extremely brilliant person.

Jedd Rii.

Link: aabicoleridge@live.co.uk