The issue of which of the parties was to have the first go at cross-examining the chairman of the Electoral Commission, Dr Kwadwo Afari-Gyan when he completed his evidence-in-chief took centre stage in court Tuesday afternoon at the election petition hearing.
There was disagreement between counsel for the petitioners on one hand and first and third respondents on the other as to the order the cross examination should take and whether the respondents could cross-examine the EC boss as separate parties.
Dr Afari-Gyan who had finished with his evidence-in-chief was expected to be cross-examined but neither counsel for the first and third respondents as well as the petitioners wanted to take the first position in cross-examining the sole returning officer of the presidential elections.
They engaged in counter arguments as to who was to go first until the court ruled that the first and third Respondents (President John Mahama and the National Democratic Congress) must go ahead with the cross examination to be followed by the petitioners.
It all began when counsel for the witness, Mr James Quashie-Idun announced that he was done with the witness and interestingly when cross-examination was expected to begin, counsel for all the parties kept glued to their seats with none wanting to take the first position to cross-examine the witness.
The president of the panel of nine judges, Justice William Atuguba had to announce, “Yes, it is time for cross-examination, or nobody has cross-examination”.
It was at this point that counsel for the petitioners, Philip Addison shot to his feet and said he thought the first and third respondents do not wish to cross-examine and that if they do not wish to, they should tell the court.
Counsel for first respondent (President Mahama), Mr Tony Lithur responded and said there has been a precedent where their witness, Mr Asiedu Nketia was cross-examined by the petitioners ahead of the second respondent (Electoral Commission).
He said if counsel was alleging a conspiracy between them, then he should make a special case for that but they were independent parties.
Counsel for the third respondent, Mr Tsatsu Tsikata said they intended to cross-examine the witness but it was clear that the petitioners had to go through their cross-examination first as they did previously and when they were completed, they (respondents) would proceed as well.
He added that counsel for the petitioners had no hesitation the first time in setting the exercise off and they did not see anything that had changed in relation to the situation and so it should proceed in the same order.
Tony Lithur added that the court had distinguished with the matter such that they (respondents) were not even allowed to interfere with examination and cross-examination objections and therefore did not see why when it comes to cross-examination they were bunched together as one lot while when it comes to raising objections they were not allowed.
But Addison disagreed and said clearly the respondents did not have adverse interest in the way they had conducted their case thus far.
He said when the second respondent (Electoral Commission) was given the opportunity to cross-examine, they rather went ahead to do re-examination.
“Quite clearly, if the petitioners were to cross-examine now, the same thing will happen again. They are going to do re-examination behind our backs. That is why it is important for the respondents to go ahead and cross-examine while we cross-examine last”.
He quoted Section 71 of the Evidence Act to support his case.
Mr Tsikata shot to his feet and said their position was that they have separate and independent interests but Addison interjected him and wanted to find out if he had sought leave from the court to speak.
He said the third respondent was an independent and separate party likewise the first respondent and that it was in the interest of expedition that was why they conferred and offered one witness (Asiedu Nketia) who testified on their behalf.
But when it comes to cross examination they were entitled to cross-examine as separate parties.
Giving their ruling the court cited Section 69 of the Evidence Act which says the court shall exercise reasonable control over cross examination.
Justice Atuguba said given the initial experience in the court where the second respondent re-examined the witness instead of cross examining him, the court has decided that the first and third respondents must go ahead with the cross examination to be followed by the petitioners to avoid such a pitfall.
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