22nd May, 2013
Yesterday, the Supreme Court brushed aside the interest of substantive justice to undo its own previous ruling on the altar of a curable technicality. This was strange, coming from a bench that has shown tolerance under similar challenges.
The court had ruled by a 5-4 majority that the petitioners could tender a document detailing 203 pinksheets from polling stations already exhibited in evidence which they have now re-categorised.
Dr Bawumia, the 2nd petitioner had consistently under cross-examination stated that some exhibits being challenged by the respondents had been since re-categorised and the tendering of the list was merely to guide the court to the new categories.
Earlier in the morning, the court had accepted, against objections from the respondents, a list of 705 pinksheets, which the petitioners said they were no longer relying on, reducing the evidence exhibited from 11,842 to 11,138.
It is significant to note that the 705 list was tendered without exhibit numbers! It was, therefore, strange that the court did not show consistency when it did not allow the 203 list to be tendered merely because they did not show their exhibit numbers which the petitioners were abandoning.
In a civil trial, a witness may be re-examined by the lawyer who conducted the examination-in-chief. The purpose of re-examination is to enable the witness to explain and
clarify relevant testimony which may have been weakened or obscured in
cross-examination.This includes new matters that have arisen for the first time in cross-examination. The issue of pinksheets being erroneously labeled or duplicated and given a different exhibit number only came up during cross-examination.
The re-examination by Philip Addison of Dr Bawumia were restricted to matters that were covered during the cross-examination. The objections that were sustained can be said to have only gone to show that the court was satisfied that there was no need for further clarification beyond what the witness had done under cross-examination.
The Let My Vote Count Alliance is concerned about the inconsistency which is seemingly being exhibited by the William Atuguba, JSC, court.
It is recalled that when counsel for the Electoral Commission was cross-examining Dr Bawumia, an objection was raised about the authenticity or propriety of a document. The court exercised its discretion to partially sustain the objection. What it did then was that in the interest of substantive justice it allowed the EC to conditionally tender the document through the 2nd petitioner to return the next day to back it with the particulars that would have made it acceptable to the court.
So one may be pushed to ask: where is the fairness in this Atuguba court? Why did it not choose to exercise its discretion to partially sustain the objection raised by the respondents for the petitioners to re-present the document with the exhibit numbers?
It is significant to note that the objections raised by all 3 respondents’ counsel were limited to the absence of exhibit numbers on the pinksheets identified in the list of 203.
In this regard, no injury would have been caused to them and the interest of substantive justice would have been duly served had the court accepted the concession from the petitioners that they should be given an opportunity to tender a document showing the categorization with the corresponding exhibit numbers.
If the court was to be consistent in its restrictive approach to technicalities it would have objected Tsatsu Tsikata’s attempt to tender a document which he had earlier on objected the tendering of its primary source. With this one referring to the 2,200 list of duplicate serial numbers which the petitioners provided its counterparts and Mr Tsikata objected to its tendering and the court varied the objection to say petitioners could tender it at re-examination.
The Supreme Court must note that an entire nation is following this case and any seemingly manifest consistency of bias poses a serious threat to an overwhelming acceptance of the final decision.
It must be consistent. It cannot be manifestly seen to be treating some parties as pampered children and others as stubborn children. It must be seen to be fair and it must be seen to be erring on the side of substantive justice against the side of curable technicalities.
David Boateng Asante