Election Petition: Written Address Of Counsel For Petitioners

THE RESPONDENTS   have strenuously resisted all requests made to them the number of exhibits served on them, including by the Court. It is the respectful contention of the petitioners that any exhibit which is proved to have been filed in this Honourable Court constitutes evidence before the Court and must be taken into account in the determination of the petition, unless the exhibit is a duplication of another one already counted.

Rule 69(C)(4) of C.I. 74 mandates the Court to: 'inquire into and determine the petition expeditiously and … give its decision not later than fifteen days from the close of hearing'.

It is the case of the petitioners that this duty to inquire into and determine the petition expeditiously enjoins the Court to consider all relevant evidence devoid of any technicality.

In any event, the point is quite simple. Once the pink sheets were used by the respondents in their cross-examination, they must be deemed to have been filed by the petitioner. The exhibits in question have been clearly identified by the respondents and were referred to in the cross-examination of the 2nd petitioner.

When all the various unique counts (8,675, 1234, 804, 648) in their specific groups are merged together into one comprehensive list, they disclose a total pink sheet count of 11,421. The criteria for determining the polling stations petitioners are relying on for purposes of this submission are that, they must:

(i) be captured in the further and better particulars

(ii) be supported by the affidavit of the 2ndpetitioner or appropriately re-categorised with leave of the Court

(iii) have unique polling station codes (except for the duplicate polling station code category where separate results are recorded on two or three different pink sheets with the same polling station code)

(iv) be captured in the KPMG Report or used by the respondents in their cross-examination of the 2ndpetitioner

(v) not be part of the 704 polling stations the petitioners deleted with leave of the Court.

Using these criteria, we would be relying on 10,119 polling stations set out in Table 1 of Volume 2. These are made up of the following unique counts:

(i) Registrar's set (KPMG report) 7999
(ii) Registrar's remarks (KPMG report) 690
(iii) President's set (KPMG report) 804
(iv) President's remarks (KPMG report) 60
(v) Respondents cross-examination exhibits 566
http://thechronicle.com.gh/wp-content/uploads/2013/08/110.jpg See the Nigerian case of Awusie v. Odili & Ors., (supra) wherein in an election petition, the Nigerian Court held that once a document is received in evidence and so marked, it becomes an evidence before the court, and the court has a duty to evaluate the probative value of every documentary evidence tendered before it.

(iii) Mislabelling/re-categorisation of petitioners' exhibits Respectfully, as stated already in this address, the sheer magnitude of the task of filing hundreds of thousands of exhibits within the very limited time of 5 days set by this Honourable Court at the application for directions stage resulted in some mistakes relating to the labelling of same. The challenge of categorisation of the exhibits is explained by the enormity of the task in first assembling the material upon which the petition is founded, to wit, the pink sheets from across the whole country, and then proceeding to analyse them for the purpose of checking and cross-checking the violations of electoral laws, malpractices and irregularities complained of throughout the country, in order to assess the legal basis for a petition to be filed. All this had to be done within the twenty-one (21) day constitutional deadline. Following the direction of the Court on the mode of trial and the specific order for the petitioners to file their affidavit evidence first within five (5) days of the Order, a new challenge of putting together thousands of pink sheets and labelling them with exhibit numbers arose. In such an enterprise which was strictly time-bound, some margin of error in categorisation and labelling of exhibits was simply unavoidable.

In the process of making relevant number of copies for service on the members of the panel and the parties hereto, errors were made in the labelling of some of the exhibits. So that in certain cases for instance an exhibit labelled as 'MD L…' may later on be found as properly belonging to the 'MB Q' series.

In order to align properly the petitioners' evidence and to throw light on some aspects of the evidence filed in this Honourable Court, a re-categorisation of some pink sheet exhibits has been done, as set out in Table 2 of Volume 2 of this Address. The total number of votes involved for the polling stations that have been re-categorised is 60,215.

Re-categorisation does not mean adducing fresh evidence. Re-categorisation in this case only means shifting a few pink sheets from one category to the other to give a truer reflection of the infractions evident on the face of the pink sheets. It would not change the nature of the pink sheet or the facts that were present on the pink sheets from the day of declaration up to the date that the exhibits were filed in compliance with the Court order dated 2nd April, 2013. It can only assist the Court in finding out the truth from the mountain of evidence. There is no surprise to be occasioned by this re-categorisation of those exhibits now. Each and every one of the exhibits that has been re-categorised were filed in this Court, since they are either in the KPMG report or shown to have been used by the respondents to cross-examine the 2 nd petitioner.

It is pertinent to note that the issue of re-categorisation of some of the exhibits filed has come up in the course of the trial a number of times. The first time the matter came up was on 16th May 2013 when the learned President of the Court, Atuguba JSC, indicated that the petitioners could undertake the re-categorisation at the 'address' stage, which is now.

Indeed, the fact that the respondents chose not to make use of the opportunity

offered by this Honourable Court to cross-examine Dr. Bawumia further following receipt of the KPMG report is further testimony to the fact that they believe they had

done all they could to cross-examine the witness on the categories and nature of

evidence that petitioners have filed and on which their case is based. The respondents themselves concede that any further cross-examination on the evidence would be superfluous.

Respectfully, it is the petitioners' contention that this Honourable Court will determine this Petition based on the evidence adduced at the trial. In doing the re-categorisation, due cognisance is taken of the admonition of Dotse JSC at page 37 of the record of proceedings for 16th July, 2013, when he stated as follows: 'And we are conducting this case based solely on evidence put before the Court and if you do not have those exhibits then you cannot get them through the witness'.

The factors that have been taken into account in the re-categorisation of the exhibits are as follows:

(i) the position that no single pink sheet is used more than once in the analysis still holds, since when there is re-categorization, the pink sheet is merely moved from one exclusive category to another exclusive category. So even where there is mislabelling that should not constitute a vitiating factor;

(ii) as the pink sheets are in evidence, the infractions are apparent on their face; and

(iii) in the interest of doing substantial justice, such errors of mislabelling should not be used to exclude material evidence.

(iv) Alleged defects in affidavit of petitioners
Respondents throughout the trial attacked the exhibits attached to petitioners on the ground that some of them were improperly stamped by a commissioner for oaths or improperly identified in the affidavit of 2nd petitioner filed on 7th April, 2013. Upon a careful examination of the affidavit and exhibits attached therewith, the petitioner in characteristic candour, conceded some of the defects with the manner in which attached to his affidavit were annexed, but explained the challenging circumstances within which the affidavit, as which have been captured above. It is important to note that the affidavit itself was properly executed by the deponent thereto. The defects were only in relation to some of the attachments to the affidavit.

The rules governing the filing of an affidavit are as spelt out in Order 20 of C. I. 47. Whilst recognizing the mandatory nature within which some of the provisions in C. I. 47 are formulated, the petitioners would respectfully pray Order 81 of C. I. 47 in aid of this Honourable Court exercising its powers to waive breaches of Order 20.

This Court on many occasions held that failure to comply with any of the provisions of C. I. 47 is an irregularity, unless it affects the jurisdiction of the Court or breach of a statute other than the rules of court, or violates the rules of natural justice. On this point, we rely on Republic v. High Court, Accra; ex parte Allgate Co. Limited (Amalgamated Bank Limited Interested Party) [2007-2008] 2 SCGLR 1041.

It is further submitted that the duty cast on the Court by Rule 69(4) of C. I. 74 to conduct an enquiry into the instant petition will require that the Court considers all exhibits placed before it which are intended to assist in the discharge of that duty, in so far as they are relevant. This duty further requires that the court administers substantial justice without undue regard to technicalities.

Reference is also respectfully made to the Ugandan case of BESIGYE KUZA V MUSEVENI YOWERI KAGUTA AND ELECTORAL COMMISSION [2001] UGSC 3 JUDGEMENT DATED 20 APRIL, 2001.

C.J ODOKI in delivering the majority decision had this to say on defective affidavits at pages 16 and 17, 'The issue in the case is whether the document filed by Hon. Okwir is an affidavit or a statutory declaration. The document is headed 'affidavit'. But at the end of it he stated, 'And I made this solemn declaration conscientiously believing the same to be true and by virtue of the statutory declaration Act 1 35'. It was declared before solicitor/commissioner for Oaths. It seems to me Hon. Okwir intended to swear an affidavit, but the form the document took was that of statutory declaration. If the document was for use in these court proceedings, it could not be a statutory declaration but an affidavit. The document was witnessed by a solicitor/commissioner for Oaths who had the power to administer an affidavit. THE MOST IMPORTANT ELEMENT IS THAT IT WAS MADE ON OATH. I THINK THIS IS A MATTER OF FORM WHICH I SHOULD DISREGARD BY APPLYING THE PRINCIPLE SET OUT IN ARTICLE 126 THAT SUBSTANTIAL JUSTICE SHALL BE ADMINISTERED WITHOUT UNDUE REGARD TO TECHNICALITIES, GIVEN THE SPECIAL CIRCUMSTANCES OF THIS PETITION.'

Odoki CJ stated further that, 'From the authorities I have cited there is a general trend towards taking a liberal approach in dealing with defective affidavits. This is in line with the constitutional directive enacted in article 126 of the Constitution that the courts should administer substantive justice without undue regard to technicalities. Rules of procedure should be used as handmaidens of justice but not to defeat them.'

In the 2006 Ugandan Presidential Election petition between BESIGYE KUZA V MUSEVENI YOWERI KAGUTA AND ELECTORAL COMMISSION (supra), TSEKOOKO JSC referring to Order 45 rule 4 of the Ugandan CPR had this to say: 'these laws already emphasize expeditious disposal of a presidential election petition. Therefore placing undue reliance on technicalities can lead to unwarranted injustice.'

He observed further thus, 'Mind you, there were lamentations during the hearing of the petition about the short time available within which parties were able to assemble evidence.

While shortage of time is no good excuse for shoddy work, such complaints if genuine, must be taken into account in assessing the value of evidence available.'

It is therefore submitted that since the affidavit of the 2nd petitioner to which the pink sheets were annexed was duly executed and sworn to, the unavoidable errors of the annexures being without any correct or accurate designation of pink sheet exhibits, where the authenticity is not disputed by the respondents, ought to be treated and waived as mere irregularity, so that the said pink sheets exhibited which are already in evidence can be considered and evaluated in the interest of substantial justice.

In the Nigerian case of Dr. Chris Nwabueze Ngige vrs Mr. Peter Obi and 436 Others [2006] Volume 18 WRN 33, it was held by the Court of Appeal at holding 30 that, election petitions are by their nature peculiar from the point of view of public policy. It is, therefore, the duty of the court to endeavor to hear them without allowing technicalities to unduly fetter their jurisdiction.

The Nigerian case of Awuse v Odili and Others [2005] 16 NWLR (Part 952) page 416 is recommended to their Lordships and Ladyships. It is hoped that they will find it persuasive.

In that case it was held that 'once a document is received in evidence, and so marked, it becomes evidence before the court under the provision of Section 91(1) of the Evidence Act, the tribunal has the duty to evaluate the probative value of every documentary evidence tendered before it.'

L. EVALUATION OF THE EVIDENCE LED AT THE TRIAL
The principal witness for the petitioners, Dr. Mahamudu Bawumia, the 2nd petitioner, in his evidence-in-chief, laid out the evidence of the petitioners. This was after he had deposed to an affidavit on 17th April, 2013 to which he had attached the relevant evidence in support of the petitioners' case - the pink sheets. It is respectfully submitted that a careful evaluation of the totality of the evidence adduced by petitioners will lead this Honourable Court to the clear and irresistible conclusion that the petitioners have abundantly discharged their burden in relation to every facet of the petition; from allegations of flaws with the registration of voters to how duplicate serial numbers on the pink sheets facilitated the perpetration of the substantive violations of the electoral laws on the strength of which the reliefs in this petition are being sought, i.e., over-voting, voting without biometric verification, absence of signatures on pink sheets, etc.

(i) Unaccounted and Double Registration
In its Answer to the Petition, the 2nd respondent provided an initial provisional registration figure of 13,917,366. The 2nd respondent further claimed that after the conduct of registration of foreign service officials, students abroad on Government of Ghana scholarship, Ghanaians working abroad in international organizations, and the late registration of foreign personnel returning from international peace-keeping duties, the figure increased to 14,158,890 registered voters. This represented an increase of 241,524 registered voters over the provisional registration figure of 13,917,366.

The 2nd respondent added that after processing the data to include persons who had been improperly removed from the register and removing names that had been improperly added to the register, the register reduced to 14,031,793. Petitioners requested further and better particulars on the 241,524 registrations 2nd respondent claimed to have conducted of Ghanaians abroad and returning peacekeeping personnel. It is significant that the 2 nd respondent was only able to provide 2,883 particulars, leaving a staggering 238,641 entries without particulars and, thus, unaccounted for in the register. It is submitted that the claim of foreign registration accounting for the 241,524 excess entries in the register, following the compilation and publication of the provisional register, was an afterthought intended to mislead this Honourable Court. Simply put, the claim that the excess of 241,524 registrations being attributable to so-called foreign registration was not borne out by the evidence led by 2nd respondent. It is yet another indication of the lack of credibility of 2 nd respondent in this Petition. It is submitted that the 238,641 registrations, which could not be identified with particulars of any lawfully registered voters, provides the opportunity for infractions such as over-voting and voting without biometric verification.

It is instructive to note that in the cross-examination of the Chairman of 2nd respondent, Dr.  Afari-Gyan, clear evidence of the unreliability of the voters register was established. The voters' register was proved to be laden with many cases of multiple registration by individuals. This evidence of multiple registration was illustrated through a reference to the registration of Ghanaians abroad. A list of instances where people registered to vote on multiple times and were issued with different identification cards by the 2nd respondent was prepared and questions asked of Dr. Afari-Gyan by counsel for petitioners on 6th June, 2013. At pages 35-38 of the record of proceedings, the evidence on this was set out.

In all, out of 705 people allegedly registered abroad by 2nd respondent, 50 cases of multiple registrations were admitted to by Dr. Afari-Gyan. This constitutes approximately 14% of the number of people allegedly registered abroad. If in just a list of 705 people registered abroad, 50 cases of double registration can be found, then extrapolating the same percentage in respect of the total voters register of 14,031,680 will result in a figure of some 1,990,000 double registration.

It is submitted that the double registrations effected by the 2nd respondent was due to the manner in which the registration of voters was done, whereby nobody could even determine the exact number of total registered voters in Ghana as of December, 2012. The 2nd respondent's failure to furnish the NPP with the provisional register and the late and piecemeal supply of the certified register disabled the NPP from scrutinizing in detail the voters register. The numbers on which the 2nd respondent was going to rely in the conduct of the December 2012 polls kept changing so much that 2nd respondent even claimed to have made a mistake in the figure it used in the declaration of the results on 9th December, 2012.

(ii) Ballot Papers Printed by 2nd Respondent
The Chairman of the 2nd respondent denied the petitioners claim that the ballots printed for the 2012 elections were some 100% more than the total number of registered voters, way above the 10% margin that was communicated by the 2nd respondent to the NPP and other political parties. Dr. Afari Gyan maintained that the total number of ballots printed for the election was 15,434,968. This was captured in the record of the proceedings on the 11th of June 2013, at pages 3-5. During cross-examination by counsel for the petitioners, Dr. Afari-Gyan provided a breakdown of the ballots printed as follows:

• Booklets of 100 ballots – 141,597 = 14,159,700
• Booklets of 50 ballots – 12,627 = 631,350
• Booklets of 25 ballots – 38,041 = 951,025
It is clear that the evidence of Dr. Afari Gyan on this issue was not truthful. This is because if one adds up the total number of ballots printed from the breakdown he provided, it amounts to 15,742,075. This figure is 307,107 higher than the 15,434,968 number he provided as the total ballots printed. In an election where the margin of difference is in the region of 320,000, Dr Afari-Gyan's inability to account for 307,107 ballots is very significant.

The pink sheets in evidence also support the petitioners' claim that an inordinately large number of ballots were printed relative to the number of registered voters in the 10,119 polling stations in contention. Summing up the ballots issued to the polling stations in column A1 of the pink sheets which petitioners are relying on results in a total number of 10,245,680. This means that if the 2nd respondent printed 15,434,968 ballots as they claim, then they only had a balance of 5,189,288 ballots for the remaining 15,883 polling stations.

This would be clearly insufficient. The evidence provided by Dr. Afari Gyan is, therefore, not credible.

As was the case with the voters register, the 2nd respondent was unable to provide consistent figures on the number of ballots printed for the 2012 presidential election. An inordinately large number of ballots relative to registered voters provides the opportunity for violations, malpractices and irregularities such as over-voting, and voting without biometric verification.

(iii) Over-voting
It is eminently clear that the petitioners succeeded in establishing the claim of over-voting in

1,722 polling stations used in the conduct of the December 2012 presidential election.

Confronted with the overwhelming record of over-voting on the face of the pink sheets, the respondents resorted to devising various excuses at rationalising the phenomenon. The first occasion on which the respondents sought belatedly to justify or explain away the entries made in columns on the pink sheets indicating of over-voting was on 23rd April, 2013, when counsel for 1st respondent in his cross-examination made the point that every case of overvoting on the face of the pink sheet was an administrative error. Counsel for 1st respondent, at page 39 of the record of proceedings for 23rd April, 2013, then started speculating as to the reasons for the entries indicative of over-voting by evolving a strange theory of electoral practice. Counsel suggested that the reason why there seemed to be over-voting on some of the pink sheets was that the number 'at the bottom was just lifted and placed in C1'.

This explanation was debunked by 2nd petitioner, when he indicated that that constituted an impossible proposition since C1 is filled before the count of ballots. Thus, it is highly irregular that a number would be lifted from the total votes cast column and placed in C1 after the counting of the ballots. This irregularity undermines the reliability of the record, i.e., the pink sheet, and compromises the integrity of the results, which should lead to the annulment of the results in that polling station.

The following is what transpired between counsel for the 1st respondent and the 2 nd petitioner on 23rd April, 2013:

'Q. I am suggesting to you that even if the number there is 73 obviously what could have happen (sic) was that the total valid votes was lifted and repeated at C1?

A. My lords C1 is suppose (sic) to be filled in before you count the ballots so it could not have been lifted and placed after counting the ballots.

Q. It was lifted erroneously…?
WITNESS: We can only deal with what is on the face of the pink sheet. I cannot speak to the state of side (sic) of the presiding officer.

Q. And I am suggesting to you that at the very best that pink sheet…?

To be Continued