As the nation follows proceedings at the Supreme Court, observers would have noticed the play of the Supreme Court Judges, as they position all parties on an even keel and quash any recalcitrance, which attempts to disrupt the smooth flow of proceedings.
Current, is the thorny issue of “Requests for Further and Better Particulars” [RFBP], by parties on both sides. This is simply a request for more clarification on a claim, or to ask for a better explanation or detailed information, which will help a party to understand the reason for being taken to court. It relates only to the pleading [claim] and is not an excuse to request evidence.
Example: “If M sends Q to court for stealing from him, Q can ask for further particulars of the claim. He needs to be sure what he is being taken to court for, to enable him to say, whether he is guilty or not. If M responds and Q understands what he is being sent to court for, the obligation for satisfying further or better particulars ends. Q can still ask [using RFBP] for additional information on the time, to help him remember if he was in town on that day. However, it will not help to jog his memory, by asking for the make, serial numbers and films of any camera which was used to capture the act, because now, he is fully aware of why he is being sent to court. He is only trying to find out, if there is any substantial evidence against him.”
Lawyers for the NPP have put up a fairly good argument, on why the request from the Electoral Commission, Mr Mahama [and soon to join NDC] does not constitute a request for further and better particulars on their claim or pleading. They have to articulate it better and strongly, so that the court knows exactly what they are alluding.
The respondents in this instance, are asking the NPP to hand over, all the evidence that they have gathered so far. That is not what the Request for Further and Better Particulars is for.
“Requests for Further and Better Particulars” [RFBP] is not intended to allow your opponent to “fish” for evidence, on which you intend to rely in court. It only relates to the pleading [claim] and just has to give the enquirer, a better and clear idea of what the accusation is. The requirement to satisfy such a request, must not compromise a party’s ability to make its case in court. It should not give the opponent the ability to seek, alter or falsify evidence.
The respondents must not use “Requests for Further and Better Particulars” as an “interrogatory provision“ [a request to further examine or clarify evidence], to “fish” for evidence, which will normally be dealt with by the courts. This is not allowed.
The NPP cannot be expected to know all the polling stations, names of personnel and serial numbers of documents, because, apart from the fact that these are all in the possession of the EC, the information will not help the EC to remember if it rigged the election or not. It will also not make it clearer, why it is being taken to court. What the NPP can show is the result involving these elements during the elections [in court].
It must be clear, that the NPP are challenging the entire election result, not that of a few polling stations. Since the NPP, did not state that there were thousands of “different” variations of irregularities, they are only obliged to give one instance of any irregularity they mention, which will summarily apply to all such instances, whatever the number and across the entire election results. That will be sufficient for the EC to state, that such an event did not occur or for the NPP to prove that it did.
For the moment, the NPP will have to be vocal and articulate their stance. They must state any reservations they have, on their allegation of the respondents ability to alter data and if possible, ask for a lockdown on all the election data held by the EC.
They have to say it and they have to be absolutely clear, that they are challenging the entire election results, not results from some polling stations. Lawyers for the respondents, will attempt to redefine the claim. It is for the NPP, to assert and maintain their claim, in exactly the manner that they want the court to hear it. The court cannot make their case for them. It can only to be impartial and unbiased. They [NPP] have to say it, for the court to act on it.
What the Electoral Commission, Mr Mahama [and soon to join NDC] are asking for, is “evidence”. That does not constitute further and better particulars of the claim before the court.
Jedd Rii
Link:aabicoleridge@live.co.uk
