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Court Re-orders Respondents to file Affidavits Before Trial


Photo ReportingCourt Re-orders Respondents to file Affidavits Before Trial

Yesterday, by a unanimous decision, the nine justices of the Supreme Court dismissed an application by the Electoral Commission asking the court to vary its order of April 2, 2013, which directed the respondents in the presidential election petition to file their affidavits and supporting evidence not later than five days after being served the affidavit evidence of the petitioners in the case.

The Commission, quoting from the High Court Rules, wanted the court to allow the petitioners (Nana Akufo-Addo, Dr Mahamudu Bawumia and Jake Obestebi-Lamptey) to open and close their case before the respondents will be invited to file any affidavits, disclosing their evidence five days before they open their case, respectively.

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This application was, however, made subsequent to the petitioners complying with the April 2 order and filing truck-load of their evidence to be served on all parties and the 9 justices. The EC's application was, however, not opposed by the 1st respondent, John Mahama, and the 2nd respondent, the National Democratic Congress, went further to advance legal arguments in support of the application.

The petitioners, however, opposed the application, saying that it was nothing more than a repetition of an oral application made by lawyers for both John Mahama and the NDC on April 2 and rejected by the court before it made its order.

With the petitioners filing some 500 boxes of evidence Sunday, their lawyer said to allow the EC's application is to allow the respondents an unfair advantage to conduct their case behind the backs of the petitioners, who have laid bare all their evidence.

Mr Philip Addison, lawyer for the petitioners, said that the respondents should not ask the court to go beyond the law governing the Supreme Court on presidential petitions, Constitutional Instrument 74, to CI 47, the High Court Rules, when the procedure has been sufficiently catered for by CI 74, which supports trial by affidavit evidence.

“Presidential election petition is a special kind of trial and not the same as any ordinary trial at the High Court,” the petitioners' lead counsel argued. He described what the EC was asking for as a review of the court's decision rather than a variation of it.

The court in dismissing the application held that presidential election petitions were sui generis (special) and the Constitution gave the judiciary powers to make regulations for it which have been done by CI 74.

Justice William Atuguba, the presiding judge, in reading the ruling, stressed that presidential petitions have to be dealt with expeditiously, citing Nigerian rules to support his case, and said this is while the trial must be conducted mostly by affidavit.

The court, however, said “the court should not shackle itself” to its interlocutory orders and will, in principle, be free to vary its own interlocutory orders if by so doing it would serve the interest of justice. But, in this case it had no reason to do so.

Tsatsu Tsikata, counsel for the NDC, had earlier said there were certain realities before the court which ought not be ignored. Although, he was to limit his arguments to matters of law, he went on to say, “As at now we have not been served. The reason is because the [Supreme Court] Registrar says although the petitioners have filed there's a lot of documents which the registry has to deal with. We are not blaming anybody but the hearing date fixed for April 16th may not come on,” he said to derisive murmurings from the petitioners' end of the bar. Counsel for the petitioners waved his right to respond to Mr Tsikata, seeing it as not necessary and leaving it to the court to make its ruling.

Information available to the New Statesman yesterday afternoon was that the court was preparing to serve the parties before close of day, which would mean that the hearing fixed for next Tuesday would not be disturbed, since the five day timetable for respondents to file their affidavit.

Source: thestatesmanonline.com



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