Constitutional law -
Election Petition –
Presidential Election –
Call
for
a
runoff -
Whether or not the
Returning
Officer
for
the
Presidential
Elections
held
on
7th
December 2020,
was
in
breach
of
Article
63(3)
of
the 1992
Constitution
- Article
64
of
the
Constitution and
Supreme
Court
Rules, 1996 (C.
i.
16)
as
amended
by
C.
i.
74
and
C.
i.
99) Amended
presidential
Election
Petition -.
Whether
or
not
the
petition
discloses
any
reasonable
cause of action -
Whether
or
not
based
on
the
data
contained
in
the
declaration
of the
1st
Respondent,
of
the
2nd
Respondent
as
President-elect,
no candidate
obtained
more
than 50%
of
the
valid
votes
cast
as required
by
article
63(3)
of
the
1992
Constitution -
Whether
or
not
the
2nd
Respondent
still
met
the
article
63(3)
of
the 1992
Constitution
threshold
by
the
exclusion
or
inclusion
of
the Techiman
South
Constituency
Presidential
election
results - Whether
or
not
the
declaration
by
the
1st
Respondent
dated
9th
December,
2020
of
the
results of
the
Presidential
election conducted
on
the
7th
December,
2020
was
in
violation
of
article 63(3)
of
the
1992
Constitution -
Whether
or
not
the
alleged
vote
padding
and other
errors complained
of
by
the
Petitioner,
affected
the
outcome
of
the
Presidential
election
results
of
2020.
HEADNOTES
On
7th
December,
2020,
the
1st
Respondent
herein,
the
Electoral
Commission, which
is
the
constitutional
body
established
under
article
43
of
the
Constitution,1992
to
conduct
all
elections
and
referenda
in
Ghana,
conducted
Parliamentary and
Presidential
election
in
all
two
hundred
and
seventy-five (275)
constituencies in
the
country,
which
are
made
up
of
thirty-eight
thousand,
six hundred
and twenty-two
(38,622)
polling
stations. The
election
was
conducted
under
Public
Elections
Regulations,
2020
[C.I.
127]. At
the
end
of
the
exercise,
the
1st
Respondent,
through
its
Chairperson
declared the
2nd
Respondent
Nana
Addo
Dankwa
Akufo-Addo,
who
was
the
Presidential
candidate
of
the
New
Patriotic
Party
(NPP),
as
the
one
validly
elected
as
the President
of
the
Republic
of
Ghana.
This
declaration
was
made
on the
9th
of December,
2020.
Pursuant to
article
63(9)
of
the
Constitution,
1992 and
regulation 44(10)
(d)
and
(11)
of
C.I.127/2020,
an
Instrument,
"DECLARATION
OF PRESIDENT-ELECTINSTRUMENT,2020"
[C.I.
135]
was published
under
the hand
of
the
Chairperson
of
the
1st
respondent
to
that effect
and
published
in
the Gazette
on
10th
December,
2020.,the
Petitioner, who
was
the
Presidential
Candidate
of
the
National
Democratic
Congress
(NDC)
in the
7th
December
2020
Presidential
Elections,
is
seeking
six
reliefs
against the
Electoral
Commission
as
1st
Respondent
and
the
Presidential
Candidate
of the
New Patriotic
Party
(NPP)
as
the
2nd
Respondent.
The
reliefs
are
in
the
nature
of
three (3)
declarations
and
three
(3)
orders. Aside
of
relief
(e),
which
is
praying
the
Court
to
restrain
the
2nd
Respondent from
holding
himself
out
as
the
President-elect
of
Ghana,
all
the
other
reliefs were
directed
against
the
1st
Respondent
-The
Petitioner,
per
his
reliefs
and
grounds,
is
not
challenging
the
data
presented by
the
1st
Respondent,
from
which
the
2nd
Respondent's
declaration
as
President- Elect was
made.
As
a
result
of
that,
he
has
not
presented
to
the
Court
any
figures to
contradict
the
data
of
the
1st
Respondent.
Petitioner's
case
simply
is
that the figures or
data declared
by
the
Chairperson
of
the 1st
Respondent
as
the
valid votes
cast
and
those
obtained by
the
two
top
contestants;
i.e.
Petitioner
and
2nd
Respondent,
when
computed,
do not
give
the
2nd
Respondent
more
than
fifty
percent
(500/0)
of
the
said
votes
to
merit
her
declaration,
as
provided
under
article 63(3)
of
the
Constitution,
1992.
The
Petitioner
averred
that
the
declaration
was therefore
unconstitutional, null
and
void
HELD
We
find
this
same
sentiment
expressed
by
our
own
eminent
jurist
Adinyira
JSC,
in the
first
Presidential
Election
petition
case
Akufo-
Addo
&
Others
v.
Mahama
& Others
No.4
(2013)
SCGLR(Special
Edition)
73.
At
page
237
to
238,
her
Ladyship had
this
to
say: "courts
usually
apply
the
election
code
to
protect----
not
to
defeat
the right
to
vote.
Public
policy
favours
salvaging
the
election
and
giving effect
to
the
voter's
intent,
if
possible.
The
right
to
vote
is
at
the
core
of our
democratic
dispensation,
a
principle
I
have
affirmed
in
this
opinion with
reference
to
the
Tehn
Addy
and
Ahumah
Ocansey
line
of cases (supra)"
We
conclude
this
judgment
by
emphasizing
that
the
Petitioner
did
not demonstrate
in
any
way
how
the
alleged
errors
and
unilateral
corrections
made by
the
1st
Respondent
affected
the
validity
of
the
declaration
made
by
the Chairperson
of
the
1st
Respondent
on
the
9th
December,
2020,
as
already
stated in
this
judgment.
The
Petitioner
has
not
produced
any
evidence
to
rebut
the presumption
created
by
the
publication
of
C
I
135
for
which
his
action
must
fail. We
have
therefore
no
reason
to
order
for
a
re-run
as
prayed
by
the
Petitioner
as in
relief
(f). We
accordingly
dismiss
the
Petition
as
having
no
merit.
STATUTES REFERRED TO IN
JUDGMENT
1992
Constitution
Evidence
Act, 1975
[NRCD
323].
High
Court Civil
Procedure
Rules,
C.1.47
as
amended
by
C.1.87,
High
Court
(Civil Procedure)
Rules,
C
I
47
Act 792. Act
2009,
President-elect
Instrument
2020
(CI
135)
CASES REFERRED TO IN
JUDGMENT
Ackah
v
Pergah
Transport Ltd
[2010]
SCGLR
728
Aryee
v
Shell
Ghana
Ltd
&
Fraga
Oil
Ltd
(2017-2020) SCGLR721
Armah
v
Hydrafoam
Estates
(Gh)
LTd
(2013-2014) 2
SCGLR1551
in
Re
Ashalley
Sotwe
Lands: Adjetey
Agbosu v
Kotei (2003-2004)
SCGLR
420
Abu-bakr
v
Yar'
adua
[2009]
All
FWLR
(pt
457)
1
SCI
Odinga
v
Uhuru Kenyatta
[2013]
petition
(No.5);
Opitz
v
Wrzesnewskli [2012]
55;
Besigye
v
Museveni Yoweri
kaguta
&.
Electoral
Commission of
Uganda
[2001]
UGSC.
Akufo-Addo,
Bawumia
&
Dbetsebi
Lamptey
v.
Mahama &
Electoral Commission
(No.4)
(201.3)
SCGLR(Special
Edition)
73.
Majolagbe
v.
Larbi &
Others
(1959)
GLR
190,
Raila
Amolo
Odinga
&
Another
v
Independent
Electoral and
Boundaries
Commission
&
4others,
No.2
of
2nd
September
2017
Gregory
Afoko
v
Attorney-General:
Writ
No.
J1/8/2019 dated
19TH
June
2019
(unreported)
Mayor Agbleze
&
2
Others
v.
Attorney
-General
Suit
No.
J1/28/2018
dated
28TH
November
2018
(unreported)
Edusei
v
Attorney-
General (1996-97)
SCGLR
1
Edusei
v.
Attorney-
General
No.2
(1997-98)
SCGLR753,
Atiku
Abubakar
&
Another v
Independent National
Electoral
Commission
(INEC)
&
2
others,
petition
No. CA/PEPC/002/2019,
dated
11th
September
2019
Pastor
Ize-Iyamu Andrew &
Anor v
INEC
[2018j
9
NWLR
(part
1625)
50
7
Daasebre
Asare
Baah
II
&.
4
Others
v.
Attorney- General
(20l0)
SCGLR463,
Appiah
II v.
Boakye
(1993-94) 1GLR
417
Dyson
v. (1911)
Attorney General 1KB
410
Hammond v
Odoi (1982-83) 2
GLR
1215.
Koduah
v
Jantuah
(2017-20)
1SCGLR
736
Others
v Kwaku
(1995-96)
1
GLR
125
BOOKS REFERRED TO IN
JUDGMENT
Halsbury's
Law
of
England,
fourth
edition
Re-issue Volume 11(2)
DELIVERING THE LEADING
JUDGMENT
YEBOAH,
CJ
COUNSEL
TSATSU
TSIKATA
WITH
HIM
TONY
LITHUR
FOR
THE
PETITIONER.
JUSTIN
AMENUVOR
FOR
1sT
RESPONDENT
WITH
HIM
A.
A.
SOMUAH
ASAMOAH. AKOTO
AMPAW
FOR
2ND
RESPONDENT
WITH
HIM
FRANK
DAVIES,
KWAKU
ASIRIFI
AND
YAW
OPPONG
_____________________________________________________________________
JUDGMENT
_____________________________________________________________________
THE
UNANIMOUS
JUDGMENT
OF
THE
COURT
WAS
READ
BY
YEBOAH
CJ.
YEBOAH CJ:-
In
this
amended
petition
(hereinafter
referred
to
as
the
Petition)
,
the
Petitioner, who
was
the
Presidential
Candidate
of
the
National
Democratic
Congress
(NDC)
in the
7th
December
2020
Presidential
Elections,
is
seeking
six
reliefs
against the
Electoral
Commission
as
1st
Respondent
and
the
Presidential
Candidate
of the
New Patriotic
Party
(NPP)
as
the
2nd
Respondent.
The
reliefs
are
in
the
nature
of
three (3)
declarations
and
three
(3)
orders.
Aside
of
relief
(e),
which
is
praying
the
Court
to
restrain
the
2nd
Respondent
from holding
himself
out
as
the
President-elect
of
Ghana,
all
the
other
reliefs were
directed
against
the
1st
Respondent.
These
reliefs
are:
(a)
A
declaration
that
Mrs. Jean
Adukwei
Mensa,
Chairperson
of
1st
Respondent and
the
Returning
Officer
for
the
Presidential
Elections
held
on
7th
December 2020,
was
in
breach
of
Article
63(3)
of
the 1992
Constitution
in
the declaration
she
made
on
9th
December
2020
in
respect
of
the Presidential
Election
that
was
held
on
7th
December,
2020;
(b)
A
declaration
that,
based
on
the
data
contained in
the
declaration made
by
Mrs.
lean
Adukwei
Mensa,
Chairperson
of
1st
Respondent
and the
Returning
Officer
for
the
Presidential
Election
held
on 7th
December
2020,
no
candidate
satisfied
the
requirement
of
article
63(3)
of
the
1992
Constitution
to
be
declared
President-elect;
(c) A
declaration
that
the
purported
declaration
made
on
9th
December
2020
of
the results
of
the
Presidential
Election
by
Mrs. Jean
Adukwei Mensa,
Chairperson
of
1st
Respondent
and
the Returning
Officer
for
the
Presidential
Election
held
on
7th December
2020 is
unconstitutional,
null
and
void
and
of
no
effect whatsoever;
(d)
An
order
annulling
the
Declaration
of
President-Elect
Instrument, 2020
(C.I.135 )
dated
9th
December
2020,
issued
under the
hand
of Mrs.
Jean
Adukwei
Mensa,
Chairperson
of
1st
Respondent
and
the
Returning Officer
for
the
Presidential
Election
held
on
7th
December
2020
and
gazetted on
10th
December,
2020;
(e)
An
order
of
injunction
restraining
the
2nd
Respondent
from
holding
himself out
as
President-elect:
(f)
An
order
of
mandatory
injunction
directing
the
1st
Respondent
to
proceed
to conduct
a
second
election
with Petitioner
and
2nd
Respondent
as
the candidates
as
required
under
article
63(4)
and
(5)
of
the
1992
Constitution.
{Emphasis
mine}
The
language
in
which
the
first
four
reliefs
(a
-
d)
were
crafted
is
suggestive
that they
were
directed
against
the
Chairperson
of
the
1st
Respondent.
However,
the Petition
is
not
against
her
personally
but
against
the
1st
Respondent
as
an Institution
of
State
established
under
the
1992
Constitution.
The
article
and
rule
under
which
the
Petitioner
mounted
the
action
are;
article
64 (1)
of
the
1992
Constitution
and
Rule
68A
of
the
Rules
of
the
Supreme
Court,
C.l.
16
(as
amended
by
C.I.
74
and
c.l.
99).
They
provide:
Article
64.
(1)
"the
validity
of
the
election
of
the
President
may
be
challenged only
by
a
citizen
of
Ghana
who
may
present a
petition
for
the purpose
to
the
Supreme
Coutt
within
twenty-one
days
after
the
declaration
of
the
result
of
election
in
respect
of
which
the
petition is
presented"
Rule
6BA.
I1Despite
rule
45(4),
the
parties
in
a
petition
shall
be
(a) the
petitioner
as
specified
in
article
64(1)
of
the
Constitution,
and (b) the
person
declared
elected
as
President
and
the
Electoral Commission
who
together
shall
be
the
respondents.
"
Though the
Petitioner
is
not,
in
substance,
attacking
the
validity
of
the
7th December,
2020
Presidential
elections
but
only
the
declaration
made
on
the
9th
of December,
2020,
the
petition
is
seen
by
many as
a
re-hash
of
the
Presidential
Election
Petition
of
2012/2013.
In
that
Petition,
the
2nd
Respondent
herein,
then
as
1st
Petitioner
and
others,
invoked
article
64(1),
purportedly
to
invalidate
the election
of
the
petitioner
herein,
then
as
1st
Respondent,
as
President-elect. As
a novelty
then
in
the
constitutional
history
of
the
Fourth
Republic,
Ansah,
JSC,
prefaced
his
judgment
in
that
petition
in
the
following
words:
"The
facts
surrounding
this
suit
have
been
fully
played
out
in
near epic
dimensions
before
the
public.
However
there
is
no
way
this
suit can
be
seen
as
a
likeness
of
the
numerous
cases
on
various aspects
of
our
1992
Constitution.
Indeed,
I venture
to
say
it cannot
be
compared
to
any
of
the
cases touching
on
various aspects
of
our
Constitution.
By
virtue
of
its
peculiar
nature
and potential
effects,
many commentators
have
rightly
described
this
suit
as
one
posing
a
test of
the
structural maturity
of
our
democratic
ethos,
causing
all
eyes worldwide
to
focus,
even
if
only
briefly
on
our
polity,
to
see
if
and how
we
can surmount
this unquiet
challenge.
Without
doubt,
the resolution
of
this
case portends much
for
the
future
path
of
our democratic
development"
- {See;
In
Re
Presidential
Election Petition;
Akufo-Addo,
Bawumia &
Obestebi-Lamptey
(No.4)
v Mahama,
Electoral
Commission
&
National Democratic
Congress (No.4)
[2013]
SCGLR(Special
Edition)
73
@
p.
151.
Ansah
JSC's
description
of
the
Petition
before
the
Court
in
2013
in
the
above
words was
apt,
as
that
case
remains
one
of
the
most
important
constitutional
cases
this apex
Court
has
determined
in
our
current
constitutional
dispensation.
It
is
therefore
not
strange
that
the
attention
that
greeted
the
2012
Petition
also gripped
the
instant
one
before
us
thus
placing the
two
seemingly
Similar cases,
on the
same
pedestal.
The
big
question
however
is
are
the
two
cases
alike
or
do
they present
Similar
issues
for
determination?
The
answer
in
both
questions
is
a
big
'NO'.
It
is
therefore
not
surprising
that
the
Petitioner
in
his
closing
address filed
on 23/02/2021,
admitted the
dissimilarity
in
the
instant
petition
and
that
of
2012/2013.
BACKGROUND
TO
THE
PETITION
On
7th
December,
2020,
the
1st
Respondent
herein,
the
Electoral
Commission, which
is
the
constitutional
body
established
under
article
43
of
the
Constitution,
1992
to
conduct
all
elections
and
referenda
in
Ghana,
conducted
Parliamentary and
Presidential
election
in
all
two
hundred
and
seventy-five (275)
constituencies in
the
country,
which
are
made
up
of
thirty-eight
thousand,
six hundred
and twenty-two
(38,622)
polling
stations.
The
election
was
conducted
under
Public
Elections
Regulations,
2020
[C.I.
127]. At
the
end
of
the
exercise,
the
1st
Respondent,
through
its
Chairperson
declared the
2nd
Respondent
Nana
Addo
Dankwa
Akufo-Addo,
who
was
the
Presidential candidate
of
the
New
Patriotic
Party
(NPP),
as
the
one
validly
elected
as
the President
of
the
Republic
of
Ghana.
This
declaration
was
made
on the
9th
of December,
2020.
Pursuant to
article
63(9)
of
the
Constitution,
1992 and
regulation 44(10)
(d)
and
(11)
of
C.I.127/2020,
an
Instrument,
"DECLARATION
OF PRESIDENT-ELECTINSTRUMENT,2020"
[C.I.
135]
was published
under
the hand
of
the
Chairperson
of
the
1st
respondent
to
that effect
and
published
in
the Gazette
on
10th
December,
2020.
The
Instrument
reads:
"IN
exercise
of
the
power
conferred
on
the Electoral
Commission under
Article
63(9) of
the
1992
Constitution,
this
Instrument
is hereby
made.
NANA
ADDO
DANKWA
AKUFO-ADDO,
the New
Patriotic
Party (NPP)
Presidential
Candidate
having,
in
the Presidential
Election held
on
the
7th of
December,
2020
pursuant
to
Article
63(3)
of
the Constitution,
obtained
more
than
fifty
per
cent
of
the
total
number of
valid
votes
cast, is
hereby
declared
the
President-Elect
of
the Republic
of
Ghana.
Given
under
my
hand
the
9th
day
of
December,
2020. Signed
MRS.
JEAN
MENSA
Chairperson
of
the
Electoral
Commission"
Article
63(9),
on
whose
strength
the
Instrument
was
made
provides:
'An
instrument
which
-
(a)
is
executed
under
the
hand
of
the
Chairman
of
the
Electoral
Commission
and
under
the
seal
of
the
Commission;
and
(b)
states
that
the person
named
in
the
instrument
was
declared
elected as
the
President
of
Ghana
at
the
election
of
the President,
shall
be
prima
facie
evidence
that
the
person
named was
so
elected.
"
The
Petitioner
filed
this
Petition
to
challenge
the
declaration made
on
grounds
of alleged
errors
and
lack
of
transparency
on
the
part
of
the 1st
Respondent
in
the correction
of
the
said
errors.
The
grounds
for
the
Petitioner's
petition
are
that
the said
declaration
violated
articles
23,
296(a)
and
(b)
and
63(3)
of
the
Constitution,
1992 and
therefore
unconstitutional,
null
and
void
and
of
no
effect
whatsoever. These
articles
of
the
Constitution mentioned
in
Petitioner's
petition
are
those allegedly
violated
for
which
the
Petitioner
sought
the
reliefs
under
paragraph
3
(a)
-
(f)
of
his
petition provide:
-
"23.
Administrative
bodies
and
administrative
officials
shall
act
fairly and
reasonably
and
comply
with
the
requirements
imposed
on
them by
law
and
persons
aggrieved
by
the
exercise of
such
acts
and decisions
shall
have
the
right
to
seek
redress,
fore
a
court
or
other tribunal.
296.
(a)
Where in
this
Constitution
or
in
any
other
law
discretionary power is
vested
in
any
person
or
authority
-
that
discretionary power
shall
be
deemed
to
imply
a
duty
to
be
fair
and
candid;
(b)
The
exercise
of
the
discretionary
power
shall
not
be
arbitrary, capricious
or
biased
either by
resentment,
prejudice
or
personal dislike
and
shall
be
in
accordance
with
due
process
of
law.
63(3).
A
person
shall
not
be
elected
as
President
of
Ghana
unless at
the
presidential
election
the
number
of
votes
cast
in
his
favour is
more
than
fifty
per
cent
of
the
total
number
of
valid
votes
cast at
the
election."
THE
PETITION
ITSELF
The
Petitioner,
per
his
reliefs
and
grounds,
is
not
challenging
the
data
presented by
the
1st
Respondent,
from
which
the
2nd
Respondent's
declaration
as
President- Elect was
made.
As
a
result
of
that,
he
has
not
presented
to
the
Court
any
figures to
contradict
the
data
of
the
1st
Respondent.
Petitioner's
case
simply
is
that the figures
or
data declared
by
the
Chairperson
of
the
1st
Respondent
as
the
valid votes
cast
and
those
obtained by
the
two
top
contestants;
i.e.
Petitioner
and
2nd
Respondent,
when
computed,
do not
give
the
2nd
Respondent more
than
fifty
percent
(50%
)
of
the
said
votes
to
merit
her
declaration,
as
provided
under
article 63(3) of
the
Constitution,
1992.
The
Petitioner
averred
that
the
declaration
was therefore
unconstitutional,
null
and
void.
The
Petitioner
proceeded
further
to
seek an
order
to
set
aside
the
Instrument
affirming
the
declaration
(i.e.
C1135)
and
a further
order
to
organize
a fresh
re-run
between
the
Petitioner
and
the
2nd
Respondent
in
compliance
with
Article
63(4)
&
(5)
of
the
Constitution,
1992. The above
constitutional
provisions
were
reproduced
under
regulation
44
(1),
(2)
and (3)
of
C.l.
127
and
they
read:
"63
(4)
Where
at
a
Presidential
Election,
there
are
more
than two
candidates
and
no
candidate
obtains
the
number
or
percentage
of votes
specified
in
clause
(3)of
this
article
a
second
election
shall be
held
within
twenty-one
days
after
the
previous
election.
(5)
The
candidates
for
a
Presidential
election
held
under
clause
(4) of this
article
shall
be
the
two
candidates
who
obtained
the
two highest
numbers
of
votes
at
the
previous
election."
From
the
nature
of
the
reliefs
sought
in
this
Petition,
relief
(b)
appears
to
be
the major
relief
on
which
the
other
five
reliefs,
i.e.;
(a),
(c),
(d),
(e)
and
(f) are buttressed.
The
success
or
failure
of
reliefs
(a),
(c),
(d),
(e)
and
(f)
depend
on
the success
or
failure of
relief
(b).
For
purposes
of
emphasis,
we
wish
to
reproduce petitioner's
relief
(b).
It
reads:
A
declaration
that
based
on
the
data
contained
in
the
declaration made
by
Mrs
.Jean
Adukwei
Mensa,
Chairperson
of
1st
Respondent and
the
Returning
Officer
for
the
Presidential
Elections held
on
7th December
2020,
no
candidate
satisfied
the
requirement
of Article
63(3)
of the
1992
Constitution
to
be
declared
President-elect
‘emphasis
ours)
This
relief
(b)
as
quoted
above
raises
an
arithmetical
question.
It
cannot
be resolved
without
resorting
to
some
calculations.
The
first
task
is
to
know
the
data the
1st
Respondent
presented,
which
the
Petitioner
was
referring
to.
The
data would
contain,
inter
alia,
the
total
number
of
votes
cast
at
the
election,
the
total number
of
valid
votes
cast,
the
total
number
of
valid
votes
cast
in
favour
of
the
2nd
Respondent
and
the
total
number
of
valid
votes
cast
in
favour
of
the
Petitioner. A
percentage of
each
of
the
candidates
is
then
calculated
against
the
total
valid votes
cast.
This
is
the
only
way
to
determine
whether
or
not
the
2nd
Respondent
obtained more
than
50%
of
the
valid
votes
cast
or
not,
as
the
Petitioner
has
challenged.
In
effect,
if
the
Petitioner
is
able
to
satisfy
this
Court
that
the
data
contained
in the
declaration
made
by
the
Chairperson
of
the
1st
Respondent,
did
not
give
the 2nd
Respondent more
than 50%
of
the
total
valid
votes
cast
in
the
Presidential election
on 7th
December,
2020,
then all
the
other
reliefs
sought
under
(a),
(c), (d),
(e)
and
(f)
must
be
granted
as
a
matter
of
course
as
that
would
mean;
article 63(3)
has
been
violated
thus
rendering
the
said
declaration
unconstitutional, null
and
void.
The
Petitioner,
in
advancing
reasons
to
support
his
petition
contended
that
though the
1st
Respondent
effected
corrections
to
its
original
data as
announced
on
9th
December
2020,
the
said
corrections
were
null
and
void
as
they
do
not
reflect
on the
declaration
made
on
9th
December,
2020.
Again
the
1st
Respondent
did
not indicate
when
the
said
corrections
were
made
and
also,
did
not
involve
the Petitioner
and
his
agents
when
making
the
corrections.
The
Petitioner
attached
to his
petition
a
pen
drive
of
the
video
clip
of
the
declaration
made
by
the
Chairperson of
the
1st
Respondent,
a
copy
of
C
I
135,
a
copy
of
a
Press
Release
issued
by
the
1st
Respondent
on
10th
December,
2020
announcing
the
errors
in
the
declaration and
the corrections
made
and
a
few
other
documents
like
summary
and
spread sheets.
According
to
the
Petitioner
the
1st
Respondent
was
not
fair
to
him
when
it
failed to
engage
his
agents
and
to
involve
them
in
the
corrections
of
the
errors
before the declaration.
There
was
therefore
no
transparency
in
the corrections
made, making the
declaration
and
C.I.135,
unconstitutional,
null
and
void
as
same constituted
a
violation
of
Articles
23,
296
(a)
and
(b)
and
63(3)
of
the
1992
Constitution.
It
is
for
this
reason
that
the
Petitioner
sought
under
his
relief
(d),
an order
annulling
C.I.
135
and
a
further order
directing
the
1st
Respondent
to proceed
to
conduct
a
second
election
between
the
first
two
candidates;
i.e. 2nd
Respondent
and
Petitioner
as
the
only
candidates,
as
required
under
article
63(4) &
(5)
of
the
1992
Constitution.
Clearly,
from
the
nature
of the
reliefs
sought
in
the
instant
petition,
it
is
not identical
with
the
2012 Presidential
election
petition.
That
petition
sought
to invalidate
the
presidential
election
conducted by
the
Electoral
Commission
by
the annulment
of
over
four
million
(4,000,000)
votes
due
to
alleged
irregularities
such as;
over-voting, lack
of
signatures
of
presiding officers
on
some
pink
sheets,
no biometric
verification
in
some
of
the
constituencies.
However,
in
this
one,
the petitioner
is
not
seeking
any
such
relief.
He
has
not
asked
for
the
annulment
of any
votes
cast
anywhere
during
the
election
and
he
has
not
said
that
the
election was
badly
conducted.
He
is
only
seeking
to
annul
C.I.135
and
a
re-run
between the
candidates
with
the
two
highest
numbers
of
votes
because
a
computation
of the
data
presented by
the
1st
Respondent
does
not
give
the
2nd
Respondent
more than
50%
of
the
total
valid
votes
cast.
That
is
why
PW
1
the
General
Secretary
of the
NDC,
Mr.
Johnson
Asiedu
Nketiah
testifying
under
oath,
told
the
Court
that, they
did
not
come
to
Court
to
challenge
figures
so
they
brought
no
figures
of
their own
to
this
Court.
"According
to
him,
they
were
judging the
Chairperson
of
the
1st
Respondent
by
"her
own
Bible",
by
which
he
meant
they
were
judging
her
by
her own
data
from
which
the
2nd
respondent
was
declared
President-Elect.
THE
1ST
RESPONDENT'S
CASE
IN
ANSWER
The
1st
Respondent
denied
Petitioner's
claim
that,
from
its
data
as
presented
in the
declaration,
the
2nd
Respondent
did not
obtain
more
than
50%
of
the
valid votes
cast
in
the
Presidential election
held
on
7th
December,
2020.
The
pt Respondent
admitted
the
Petitioner's
contention
that it
initially
made
mistakes
in the
figures
announced
on
the 9th
of
December,
2020
during
the
declaration
by juxtaposing
the
total
number
of
votes
cast
in
the
Presidential
elections
with
that of
the
total
number
of
valid
votes cast.
However,
this
error
was
immediately corrected
and
the
correct
figure
mentioned
in
a
press
release
the
following
day
10th
December,
2020
and
accordingly
published
in
the
official
Gazette.
1st Respondent
contended
further
that
even with
the
error,
the
fact
that
the
2nd
Respondent
obtained
more than
50%
of
the
total
valid
votes
cast
was
not
in
doubt. The
1st
Respondent
prayed
the
Court
to
dismiss
Petitioner's
petition
for
disclosing no
cause
of
action.
THE
2ND
RESPONDENT'S
CASE
IN
ANSWER
The 2nd
Respondent
also
denied
Petitioner's
case
and
described
same
as incompetent
and
devoid
of
any
substance
whatsoever.
He
was
of
the
view
that even
though
Petitioner
said
no
candidate
obtained
more
than
50%
of
the
total valid
votes
cast
and
sought
a
re-run
between
the
two
of
them,
the
Petitioner
did not
indicate
the
number
of
valid
votes
or
percentage
thereof
that
he
should
have obtained
in
the
election,
or
the
number
of
valid
votes
or
percentage
thereof
that the
2nd
Respondent
should
have
obtained
in
the
election
to
support
the
allegations and
request
for
the
re-run.
He
contended
further
that
the
corrections
of
the
errors by
the
1st
Respondent
in
her
statement
on
the
9th
of
December,
2020
annexed
by the
Petitioner
to
her
statement
in
support
of
the
petition,
were
made
within
the authority of
the
1st
Respondent
and
do not
infringe
any
law.
According
to
2nd
Respondent,
the
corrections
effected
by
the
1st
Respondent
in
its
press
release
of 10th
December,
2020,
provided
a
proper
reckoning
of
the
percentage
of
votes obtained
by
the
2nd
Respondent
using
the
valid
votes
cast
rather
than
total
votes cast
and
shows
that
the
2nd
Respondent
obtained
more
than
50%
of
the
valid votes
cast
as
required
under
article
63(3)
of
the
Constitution.
He
averred
that
Petitioner's
claims
are
anchored
on
an
innocuous
mistake
made
by
the
1st Respondent
in interchanging
total
votes
cast
for
total
valid
votes
cast,
when announcing
the
various
percentages
obtained
by
each
candidate
on
9th
December, 2020.
2nd
Respondent
contended
strongly
that
when
the
total
valid
votes
cast
are used
as
the
yardstick,
he
would
still
be
the
outright
winner
of
the
election
by
more than
50%
of
the
votes,
even
if
by
statistical
projection,
the
votes
of
all the
128,018 registered
voters
in
Techiman
South
were
to
be
added
to
Petitioner's
vote.
The
2nd
Respondent
averred
further
that, if
the
number
of
votes
obtained
by
each candidate
in Techiman
South
is
factored
into
the
results
declared
by
the
1st
Respondent
on
9th
December,
20201
the
2nd
Respondent's
share
of
the
valid
votes cast
is
still
well
over
51%
a
fact
the
Petitioner
has
not
questioned
in
the
petition.
2nd
Respondent
denied
allegations
of
violation
of
articles
23
and
296
of
the Constitution
as
misconceived.
On
the
alleged
vote
padding
and
errors
referred
to by
the
Petitioner,
the
2nd
Respondent,
who
denied
same,
contended
that,
granted the
allegations
were
true,
they
did
not
have
any
effect
whatsoever
on
the
results of
the
election.
He
said
the
alleged
unconstitutionality
of
a
declaration
or
gazette notification
of
an
election
does
not
constitute
a
challenge
to
the
validity
of
an election
of
a
person
as
President.
He
emphatically
concluded
that
the
Petitioner has
neither
challenged
the
conduct
of
the
election
itself
nor
its
validity
so
his
action is
not
an
election
petition
properly
so-called
and
ought
to
be
dismissed
in
limine.
2nd
Respondent
served
notice
of
his
intention
to
raise
a
preliminary
objection
to the
Petition
on
the
ground, inter
alia,
that
the
petition
did
not
meet
the requirement
imposed
on
a
petitioner
under
article
64(1)
of
the
Constitution,
1992. He
consequently
filed
a
preliminary
objection,
as
the
1st
Respondent
also
did,
for the
dismissal
of
the
petition
on
the
ground
that
it
discloses
no
reasonable
cause of
action
in
terms
of
article
64(1)
of
the
Constitution,
1992.
Though
both
the 1st
and
2nd
Respondents
prayed
the
Court
to
set
down
for
legal arguments
their
objection
in
limine
to
Petitioner's
petition,
the
Court
decided
to hear
the
petition
in
detail
and
resolve
the
preliminary
legal
objection
together
with the
other
issues
raised
by
the
pleadings
of
the
parties.
ISSUES
SET
DOWN
BY
THE
COURT
FOR
DETERMINATION
The
Court
directed
each
of
the
parties
to
file
memorandum
of
issues
for
trial.
The parties
complied
and
filed
issues
they
considered
material
for
consideration.
Out of
those
issues
and
the
materials
contained
in
the
petition
and
the
answers
to
the petition,
this
Court
adopted
the
following
as
the
real issues
arising
from
the pleadings
for
determination:
1.
Whether
or
not
the
petition
discloses
any
reasonable
cause of action;
2.
Whether
or
not
based
on
the
data
contained
in
the
declaration
of the
1st
Respondent,
of
the
2nd
Respondent
as
President-elect,
no candidate
obtained
more
than 50%
of
the
valid
votes
cast
as required
by
article
63(3)
of
the
1992
Constitution;
3.
Whether
or
not
the
2nd
Respondent
still
met
the
article
63(3)
of
the 1992
Constitution
threshold
by
the
exclusion
or
inclusion
of
the Techiman
South
Constituency
Presidential
election
results;
.
4.
Whether
or
not
the
declaration
by
the
1st
Respondent
dated
9th
December,
2020
of
the
results of
the
Presidential
election conducted
on
the
7th
December,
2020
was
in
violation
of
article 63(3)
of
the
1992
Constitution;
and
5.
Whether
or
not
the
alleged
vote
padding
and other
errors complained
of
by
the
Petitioner,
affected
the
outcome
of
the
Presidential
election
results
of
2020.
MODE
OF
TRIAL
Since
the
rules
of
this
court,
regulating
Presidential
Election
Petition
trials, that
is, C.1.16
as
amended
by
C.1.74
&
C.1.99
has
a
regimented
timetable,
that include
a scheduled
date
for
pre-trial
case
management
protocols,
the
Court
adopted
the procedure
in
the
High
Court
Civil
Procedure
Rules,
C.1.47
as
amended
by
C.1.87 on
the
filing
of
witness
statements
with
exhibits,
if
any.
The
Court accordingly
directed
the
parties
to
comply
by
filing
witness
statements
within
specified
periods. They
were
also
directed
to
file
their
written
submissions
for
and
against
the preliminary
objections
raised
to
the
petition
by
the
respondents.
Though
the Petitioner
defaulted
initially
in
the
directions
to
file
witness
statements
and
their answer
to
the
legal
submissions
made
by
the
respondents
on
the
preliminary objections,
they
later
complied
when
the
Court
admonished
them
to
do
so
within twenty-four
hours
or
have
their
petition
determined
in
accordance
with
the
law. The
Petitioner
who
did
not
file
any
witness
statement
of
his
own,
filed
witness statements
of
two
witnesses
he
intended
to
rely
on
to
establish his
case.
The
1st
Respondent
also
filed
a
witness
statement
of
its
Chairperson
whilst
the
2nd
Respondent
filed
a
witness
statement
through
his
attorney.
STANDARD
OF
PROOF,
BURDEN
OF
PROOF
AND
PERSUASION.
A
Petition
of
this
nature
is
a
form
of
civil
litigation
and
like
all Civil
cases;
the standard of
proof
is
one
on
the
balance
of
probabilities
or
preponderance
of
the probabilities.
The
proof
prescribed
in
civil
trials
is
provided
under
sections
10,
11 and
12
of
the
Evidence
Act, 1975
[NRCD
323].
These
sections
on
the
burden
of proof, burden
of
persuasion
and
burden
of
producing
evidence,
which
apply equally
to
election
petitions,
provide
thus:
"10.
(1)
For
the
purposes
of
this
Act
the
burden
of persuasion
means
the obligation
of
a
party
to
establish
a
requisite
degree
of
belief
concerning
a fact
in
the
mind
of
the
tribunal
of
fact
or
the
Court.
(2)
The
burden
of
persuasion
may
require
a
party
(a)
to
raise
a
reasonable doubt
concerning
the
existence
or
non-existence
of
a
fact,
or
(b)
to
establish the
existence
or
non-existence of
a
fact
by
a
preponderance
of
the probabilities
or
by
proof
beyond
a
reasonable
doubt.
11.
(1)
For
the
purposes
of
this
Act
the burden
of
producing
evidence means
the
obligation
of
a party
to
introduce
sufficient
evidence
to
avoid
a ruling
on
the
issue
against
that
party .....
12.
(1)
Except
as
otherwise provided
by
law,
the
burden
of
persuasion requires
proof
by
a
preponderance
of
the
probabilities
...
(2)
'Preponderance
of
the
probabilities'
means
that
degree
of
certainty of belief
in
the
mind
of the
tribunal
of fact
or
the
Court
by
which
it
is convinced
that
the
existence
of
a
fact
is
more
probable
than
its
non-eastence".
As
was
held
by
this
Court
per
Adinyira,
JSC
in
Ackah
v
Pergah
Transport Ltd
[2010]
SCGLR
728
at
p.
736:
nIt
is
a
basic
principle
of
the
law on
evidence
that
a
party
who
bears
the
burden
of
proof
is
to producethe
required
evidence
of
the
facts
in
issue
that
has
the quality
of
credibility
short
of
which
his
claim
may
fail
...
"
See
also
the
case
of
Aryee
v
Shell
Ghana
Ltd
&
Fraga
Oil
Ltd
(2017-2020) SCGLR721
at
733,
where
this
court speaking
through
Benin
JSC
had
this
to say:
''It
must
be
pointed
out
that
in
every
civil
trial
all
what
the law required
is
proof
by
preponderance
of
probabilities:
See
section
12 of
the
Evidence
Act;
1975(NRCD
323).
The
amount
of evidence required
to
sustain
the standard
of
proof
would
depend
on
the nature
of
the
issue
to
be
resolved.
The
law
does
not
require
that the
court
cannot
rely
on
the
evidence
of
a
single
witness
in
proof of
the
point
in
issue. The
credibility
of
the
witness
and
his knowledge
of
the subject-
matter
are
determinant
factors:
See Armah
v
Hydrafoam
Estates
(Gh)
LTd
(2013-2014) 2
SCGLR1551.
Indeed,
even
the
failure
by
a
party
himself
to
give
evidence cannot be
used
against him
by
the
Court
in
assessing
his
case:
this
court's decisions
in
Re
Ashalley
Sotwe
Lands:
Adjetey
Agbosu v
Kotei (2003-2004)
SCGLR420
per
Georgina Wood
.JSC
(as
she
then
was), at
page
448:
and
Armah
v
Hydrafoam
Estates
Gh
Ltd.
Referred
to (supra).
In
the last
case
cited,
the
Plaintiff
did
not
testify
in
the action at
all
and
only
relied
on
the
testimony
of
the
Court
appointed witness,
yet
he
succeeded
and this
Court
considered
the
process valid so
long as
the
evidence
relied
upon
was
credible
and sufficient
to
discharge
evidential
burden
he
assumed.
"
Cases
on
election
petitions
in
Africa
and
other
common
law
jurisdictions give
credence
to
the
notion
that
in
such
cases where
a
petitioner
seeks to
annul
an election
or
a
declaration
pertaining
to
an
election,
he
bears
the
legal
burden
of proof
throughout.
See
1.
ABU-BAKR
v
YAR'
ADUA
[2009]
All
FWlR
(pt
457)
1
SCi
2.
ODINGA
v
UHURU KENYATTA
[2013]
PETITION
(NO.5);
3.
OPITZ
v
WRZESNEWSKlI
[2012]
see
55;
4. BESIGYE
v
MUSEVENI
YOWERI
KAGUTA
&.
ELECTORAL
COMMISSION OF
UGANDA
[2001]
UGSC.
In
the
Ugandan
case
of
Besigye
v
Museveni
&
Electoral
Commission
of
Uganda (supra),
the
Ugandan
Supreme
Court
held:
"The
burden
of
proof
in
election
petitions
as
in
other
civil
cases
is settled.
It
lies
on
the
petitioner
to
prove
his
case to
the
satisfaction of
the
Court.
•
"
In
the
Yar'
Adua
case
the
Supreme
Court
of
Nigeria
held:
"that
the
burden is
on
the
petitioner
to
prove,
not
only
non-compliance
with the electoral
law,
but
also
that
the
non-compliance
affected
the
results of
the
election
...
"
This
Court
adopted
the
same
principle in
the
first
Presidential
Election
Petition, titled
Akufo-Addo,
Bawumia
&
Dbetsebi
Lamptey
v.
Mahama &
Electoral Commission
(No.4)
(201.3)
SCGLR(Special
Edition)
73.
THE
TRIAL
ITSELF-
EVIDENCE
LED
BY
PETITIONER
The
Petitioner
did
not
testify
himself
and
appointed
no
Attorney to
testify
on
his behalf
but
called
three witnesses
in
all.
They
were;
Mr.
Johnson
Asiedu
Nketiah (P.W.1),
Dr.
Kpesah
Whyte
(P.W.2)
and
Mr.
Robert
Joseph
Mettle-Nunoo
(P.W.3). Under
the
law,
the
Petitioner
is
not
bound
to
testify
himself
if
only
he
could
prove his
case
through other
witnesses
or
by
any
other
means.
{See
the
case
of
In
Re Ashalley
Botwe
Lands:
Adjetey
Agbosu
&
Drs.
v
Kotey
&
Drs
(supra).
We
know
of
no
law
in
the
common law
jurisdiction,
especially
in
civil
trials
that mandates
a
court
to
compel
a
party
to
testify
against
his will.
The
failure
of
the Petitioner
to
testify
himself
is
therefore
not
fatal
to
his
cause
as
the
law
permits that.
What
is required
from
him
by
law
is for
him
to
call
requisite
witness(s)
or
put before
the
court,
sufficient
material
as
evidence.
Initially, the
Petitioner
indicated
calling
two
witnesses
so
only
two
witness statements
were
filed
on
the
orders
of
the
Court.
These
witnesses
were
P.W.1
and PW2.
After
the
two
witnesses
had
completed
their
testimonies
through
the adoption
of
their
witness
statements
and
cross-examination,
the
Petitioner
prayed the
Court
to
permit
him
to
call
a
third
and
final
witness
to
conclude
his
case. Though
the
prayer
came
at
a
time
that
the
Petitioner
had
not
given
any
prior indication
of
such
an
intention,
for
which
counsel
for
the
Respondents
raised objections to
the
move,
the
Court
obliged
him
and
made
an
order
for
a
witness statement
to
be
taken
from
this
witness
to
enable
him
testify
for
the
Petitioner. The
Petitioner
did
so
and
closed
his
case
with
this
witness
who
testified
as
PW.3.
Out
of
these
three witnesses,
the
one
whose
testimony
appeared
to
have
some relevance
to
the
issues
at
stake
was
Mr.
Johnson
Asiedu
Nketiah,
P.W.!.
He
was, in
fact,
the
star witness of
the
Petitioner.
His
testimony
vividly
explained
the reasons
why
the
Petitioner
is
in
Court.
As
for
the
other
two
witnesses;
i.e.
P.W.2 and
3,
Dr.
Kpessah
Whyte
and
Mr.
Robert
Joseph
Mettle-Nunoo,
the
little
said about
their
testimonies
relative
to
the
issues
at
stake,
the
better.
P.W.2
and
3 were
the
agents
who
represented
the Petitioner
in
the National
Collation
Centre dubbed
the
'Strong
Room'.
Their
testimonies
were
based mainly
on
what
allegedly happened
in
the
Strong
Room
during
the
final
collation
and
the
fact
that
they
failed to
sign
the
final
form
of
the
Presidential
Elections
called
'Form
13'
because
of disagreements
they
said
they
had
with
the
Chairperson
of
1st
Respondent
and
her staff
in
the
Strong
Room.
They
recounted
a
fanciful
tale
of
how
the
Chairperson refused
to
heed their
complaints
on some
irregularities
they
noticed
in
some
of
the collation
forms
that
came from
some
of
the
regions.
We
describe
this
evidence
as fanciful
because
despite
these
alleged
protest
they
went
ahead
to
verify
and
certify 13
out
of
the
16
Regional
Collation
Sheets.
Their
testimony
included
an
account
of how
the
Chairperson
of
the
1st
Respondent,
managed
to
trick them
to
leave
the Strong
Room
by
sending
them
on
an
errand
to
confer
with the
Petitioner,
during which
period
she
declared
the
results
of
the
presidential
elections without
their participation.
Whilst
the
testimony
of
P.W.1
was
emphatic
that
the
Petitioner
is not
in
Court
to challenge
or
compare
the
figures
or
data
presented
by
the
1st
Respondent
with any
other
figures,
the
testimonies
of
P.W.2
and
PW 3
were
in
respect
of
alleged irregularities
in
the
figures
or
data
on
some
of
the
regional
collation
forms
that they
sighted
in
the
Strong
Room,
but
which they
ultimately
signed
or
certified.
Notwithstanding
all
these allegations
of
misunderstandings
with
staff
of
the
1st
Respondent
in
the
strong
room
and
the fact
that
they
were
absent
during
the declaration,
they
did
not
give
any
indication
as
to
how
these
happenings
and
their absence
affected
the
final
results
announced
by
the
1st
Respondent.
Having
signed or
certified
those
forms,
the
witnesses,
particularly
P.W.3
cannot
turn
round
to talk
of
irregularities
in
the
said
forms.
Their
testimonies would
have
carried
some little
weight
if
the
purpose
of
the petition
was
to
challenge
entries
made
on
the collation
forms
or
summary
sheets,
but
that
is
not
the
case.
Their
testimonies
were therefore
of
no
relevance
whatsoever
to
the
issues
set
down
for
determination
and we
find
them
unworthy for
any
consideration
whatsoever
in
the
settlement
of
the issues.
Infact
regarding
the
testimonies
of
PW
2
and PW3,
if
their
evidence
is
to
be believed
then
they
have
to
blame
themselves for
abandoning
their
post
at
the National
Collation
Center
at
a
time
the
verification
and certification of the
results were
ongoing
and
PW3
had
then
verified
and
certified
13
Regional
Collation
Result out
of
the
16.
The
agents
of
the
Petitioner
were
given
the
opportunity
to
be
in
the
strong
room. In
addition
the
petitioner
had
two
additional
agents
as
back-up
or
stand
by.
PW2 and
PW3
were
not
under
any obligation
to
leave
the
strong
room
under
any circumstances.
Besides
other
Presidential
candidates
had
their
agents
or representatives
in
the
strong
room
and
eight
(8)
of
them
signed
Form
13.
If
the Petitioner's
agent's
believed
that
in
their
absence
something
untoward
happened, the
Petitioner
should
have
called
any
of
the
other
agents
in
the
strong
room
to testify
in
court
any
infractions
that
happened
in
their absence,
if
.any.
The
law
is that
where
corroborative
evidence
exists,
the law
expects
a
party
to
call
such evidence
in proof
of
his
case
and not
mount
the
witness
box
and repeat
his averments
on
oath.
The
dictum
in
Majolagbe
v.
Larbi &
Others
(1959)
GLR
190,by Ollenu
J
(as
he
then
was)
is still
good
law.
The
Petitioner's
agents
were
given
the opportunity
to
represent
petitioner
in
the
strong
room
and
they
decided
to
leave. They
cannot
complain
now
that
the
declaration
was
done
in
their
absence.
With
respect
to
the
duties
of
party
agents
or
representatives, we
refer
and
to
the Kenyan
case
of
Raila
Amolo
Odinga
&
Another
v
Independent
Electoral and
Boundaries
Commission
&
4others,
No.2
of
2nd
September
2017, where
NJOKI
S.
NDUNGU,SO
opined
thus:
"Once
the
Constitution
gives
citizens
the
right
to
vote,
the
freedom to choose,
and
conditions
are
created
for
the
realization
of
that right,
it
is
not
the
business
of
the
Court
to
aid
the
indolent.
If
party agents
are
required
to
be
present,
sign
statutory form
and undertake
any
other legitimate
duty
that
is
imposed
upon
them
as part
of
the
political
process
in
an
election,
then
they
are
under obligation
to
do
it. To
fail
to
do
so
is
not
only
to
fail
one's
party,
but also
to
fail
our
democracy.
The
Courts
must
frown upon
any
such inaction,
reluctance
and
delay.
A
candidate,
or
her agent,
cannot
abscond
duty
from
a
polling station
and
then
ask
the
Court
to
overturn
the
election
because
of her
failure
to
sign
a
statutory
form.
Every
party
in
an
election
needs to
pull
their
own
weight,
to
ensure that
the
ideals
in
Article
86
are achieved:
that
we shall
once
and
for
all
have
simple,
accurate,
and verifiable,
secure,
accountable,
transparent
elections.
"
Again,
in
the
Nigerian
case
of
Atiku
Abubakar
v Independent
National Electoral
Commission
&.
Buhari
(supra)
Mohammed
Lawai
Garba, lCA stated
thus:
''It
is
pertinent
to
restate that
from
the
evidence
of
all
the witnesses
called
by
the
appellants they
admitted
that
their
polling agents
signed
all
the
result
sheets
and did
so
voluntarily
on
the instruction
of
their
party,
the
1st
respondent.
The
implication
is therefore
obvious
as
it
would
have
authenticated
the
validity
of
the documents, in
other
words,
the
results
sheets.
The
agents,
in
law were
all
presumed to
understand
what
they
appended
their signatures
thereto.
They
could
not
in
the
circumstance
have
turned around
to
deny
the
contents
of
their
signatures.
"
EVIDENCE
OF
P.W.l
With
regard
to
the
first witness
P.W.1,
the
gravamen
of
his
evidence
as
per
his witness
statement,
after
the
Court had expunged
some
portions
of
same
upon objection
raised
by
the Respondents,
is
captured
in
the
answers
he
gave
during cross-examination
by
counsel
for
the
1st
and
2nd
Respondents.
According
to
him, the
Petitioner
did
not
come to
Court to
challenge
the
validity
of
the
figures
or
data presented
by
the
Chairperson
of
the
1st
Respondent
that
is
why
in
his
testimony; he
did
not
provide
any
data
to
contradict
that
of
the
1st
Respondent.
His
assertion was
that
the
figures
initially
collated
by
the
Chairperson
contained
errors,
which his
Party,
the
NDC
pointed
out
in
a
letter
addressed
to
the
Chairperson
on
the
9th
of
December
2020
before
the
declaration.
However,
in effecting
corrections
to
the wrong
figures
or
data,
the
1st
Respondent
did
not
invite
them
for
their
participation but
unilaterally
effected
the
said
corrections,
contrary
to
articles
23
and
296
(a) and
(b)
of
the
1992
Constitution.
The
question
is;
what
is
the
legal
implication,
if
any,
of
1st
Respondents'
failure
to involve
the
Petitioner
and
his agents
in
correcting
administrative
or
clerical
errors made
in
the
computations or
the
declaration?
Neither
the
Petitioner
nor
his witnesses
mentioned
any
to
us
and
we
do
not
find any.
This
court
has
held
in several
cases
including
the
recent
ones
of
Gregory
Afoko
v
Attorney-General:
Writ
No.
J1/8/2019 dated
l!J1h
June
2019
(unreported)
and
Mayor Agbleze
&
2
Others
v.
Attorney
-General
Suit
No.
J1/28/2018
dated
21Jlh November
2018
(unreported),
that
breaches
or
violations
of
Article
23
on administrative
justice
and
the
exercise
of
discretion
under
Article 296
of
the
1992
Constitution
by
administrative
bodies,
which
includes
the 1st
Respondent,
are
not matters
for
the
Supreme
Court.
These
are
infractions
that
the
Petitioner
could
have sought
redress
in
the
High
Court.
To
quote
Marful-Sau,
JSC
in
the
Afoko
case supra:
"
Article
23
of
the
Constitution
deals
with
administrative
actions and
even
where
a
breach
of
that
provision
is
alleged,
the
remedy lies
in
the
High
Court
and
not
this
Court.
Article
23
is
part
of
Chapter
5
of
the
1992
Constitution
on
Fundamental
Human
Rights
and Freedoms,
which
by
Article
33(1)
&(2)
of
the
Constitution,
ought
to be
enforced
in
the
High
court".
See
also
Edusei
v
Attorney-
General(1996-97)
SCGLR1and
Edusei
v.
Attorney-
General
No.2
(1997-98)
SCGLR753,
On
the
exercise
of
discretion
under
article
296
and
alleged
breaches
or
violation of
same,
this
Court
in
the
Mayor
Agbleze
case
supra,
held
per
Kotey
(Prof.),
JSC as
follows:
"Throughout
the
Constitution,
discretion
has
been
vested
in persons
or
bodies
charged
with
the
responsibility
to
exercise
one power
or
the
other.
Where
the
discretionary
power
is
not
exercised according
to
law,
the
recourse
by
an
aggrieved
party
lies
in
some other
remedy
provided
for
in
the
Constitution
and
not
an
invitation to
invoke
the
original
jurisdiction
of
this
Court. "
Though
the
two
authorities
cited
above
involve
the
invocation
of the
original jurisdiction
of
this
Court
under
articles
2(1)(b)
and
130(1)
of
the
1992 Constitution, the
same
applies
to
an
election
petition.
The
1st
Respondent
is
an
independent body
that
performs
its
functions
without
anybody's
directions
or
assistance.
Article 46
is
specific
about
this.
It
reads:
"Except
as
provided
in
this
Constitution
or
in
any
other
law
not inconsistent
with
this
Constitution,
in
the
performance
of
its functions,
the
Electoral
Commission
shall
not
be
subject
to
the direction
or
control
of
any
person
or
authority. "
There
is
no
dispute
that
the
1st
Respondent
complied
with
article
296
(c)
when
it published
the
Regulations
[C.I.
127].
By
this
publication,
the
1st
Respondent
did not
breach
clause
(b)
of article
296
as
its
actions
were
not
capricious
and
arbitrary. They
were
regulated
by
C.I.
127
and
there
is
no
complaint
anywhere
by
the Petitioner
that
the
1st
Respondent
did
not
comply
with
C.1.
127.
If
it
is
the
case
of anybody
that
the
1st
Respondent
violated
articles
23
and
296
in
the
discharge
of its
duties,
which
included
the
declaration
of
the
Presidential
results
under
article
63(3)
of
the
1992
Constitution,
the
remedy
of
that
person
lies
in
the
High
Court, because
strictly,
such
a
complaint
cannot
be
an
election
petition
challenging
the validity
of the
election
of the
President
of Ghana.
THE RESPONDENTS
CASE
At
the
close
of
the
Petitioner's
case,
the
Respondents
decided
or
elected
not
to testify
at
the
proceedings.
They
relied
on
Order
38
rule
3E
(5)
of
the
High
Court Civil
Procedure
Rules,
C.1.47
as
amended
by
C.1.87,
which
the
Court
adopted
to regulate
the
trial
in
addition
to
the
rules
provided
under
C.1.16
as
amended
by C.I.74
and
C.1.99.
The
Respondents
prayed
the
Court
to
decide
the
issues
before it
on
the
strength
of
the
oral
and
documentary
evidence
led
by
the
Petitioner through
his
witnesses.
This
decision
by
the
respondents,
which
is
not
a
novelty but
accepted
as
settled
practice,
attracted
strong
opposition
from
counsel
for
the Petitioner
who
insisted
that
the
Chairperson
of
the
1st
Respondent
must
be
made to
testify
for
her
to
be
cross-examined.
All
the
attempts
employed
by
counsel
for the
Petitioner,
which
included
an
attempt
to
re-open
Petitioner's
case
for
him
to subpoena
the
Chairperson
of
the
1st
Respondent
to
testify
for
him
as
a
witness and
an
application
to
review
the
Court's
ruling
on
Respondents' decision
not
to
call evidence,
which
were
all
resisted
by
counsel
for
the
Respondents,
were
dismissed by
the
Court.
We
will
like
to
reiterate
the
point
made
above
that in
law
the
step
taken
by
the Respondents
has
the
sanction
of
time- honoured
and
settled
practice
in
our adversarial
system
of
justice.
The
position
.of
the
law
is
that after
the
close
of
the Plaintiff or
a
Petitioner's
case,
a
defendant
or
a
respondent
for
that
matter
has three
options
opened
to
him.
The
Defendant
or
Respondent
may
elect
to
open
his
defence
and
call
witnesses
if he
so
wishes.
Secondly,
the
defendant
or
respondent
may
elect
to
rest
his
case
on the
Plaintiff's
or
Petitioner's,
when
he
is
of
the
view
that
the
case
of
the
Plaintiff or
Petitioner
is
weak
and has
failed
to
raise
a
prima
facie
case
to
warrant
the defence
to
answer.
Lastly,
the
Defendant
or
respondent
may
elect
to
make
a
no case
submission
where-
upon
he
may
be
put
to
an
election
by
a
trial
judge.
This no
case
submission
is
to
the
effect
that
even
if
the
whole
of
the
evidence
led
by the
plaintiff
is
admitted
there
is
no
prima
facie
case
made
out
by
the Plaintiff
or Petitioner.
Mohammed
Lawai
Garba,
JCA
of
the
Court
of
Appeal
of
Nigeria
in
the
Presidential Election
Petition
between
ATIKU
ABUBAKAR
&
ANOTHER v
INDEPENDENT NATIONAL
ELECTORALCOMMISSION
(INEC)
&
2
Others,
PETITION
NO. CA/PEPC/002/2019,
dated
11th
September
2019
stated:
"The
trite
position
of
the
law is
that
a
Defendant
to
an
action
or
a Respondent
in
an
election
Petition
is
entitled
to rest
his
case
on
that
of
the Claimant
or
the
Petitioner
where
he
has,
through devastating
cross- examination,
elicited
or
extracted
sufficient
evidence
to
support
and
prove the
facts
or
assertions
contained
in
his
pleadings.
In
such
circumstance,
a Defendant
or
Respondent
can
decide
not
to
call
any witness.
It
does
not amount
to
not
calling
evidence
or
failure
to
call
evidence.
"
The
Nigerian
Court
of
Appeal,
in
coming
to
the
above
conclusion,
relied
on
the dictum of
Justice
Kekere-Ekun,
JSC
in
the
case
of
PASTOR
IZE-IYAMU ANDREW
&
ANOR
v
INEC
[2018J
9
NWLR
(PART
1625)
50
7
@
582E-F, where
the
Supreme
Court
held:
"Evidence
elicited
from
a
party
or his
witness
under
cross-examination, which
goes
to
support
the
case of
the
party
cross-examining,
constitutes evidence
in
support
of
the
case
or
defence
of
the
party.
If
at
the
end
of
the day
the
party
cross-examining
decides
not
to
call
any
witness,
he
can
rely on
the
evidence
elicited
from
cross-examination
in
establishing
his
case or defence.
One
may
however
say
that
the
party
called
no
witness
in
support of
his
case,
not
evidence
as
the
evidence
elicited
from
his
opponent under
cross-examination
which
is
in
support
of
his
case or
defence,
constitutes
his evidence
in
the
case.
The
exception
is
that
the
evidence
so
elicited under
cross-examination,
must
be
on
facts
pleaded-by
the
party
concerned
for
it to
be
relevant
to
the
determination
of
the
question/issue
in controversy between
the
parties,
having
regard
to
the
fact
that the
relevant
evidence elicited
from
the
appellants
relate
to
the
facts
pleaded
by
way
of
defence
to the
action,
they
form
part
of
the
respondent's
case
and
can
be
relied
upon by
the
respondents
in
establishing
their
defence
to
the
action
without calling
witnesses
to
further
establish
the
said
defence.
"
This Court
therefore
after
the
Respondents
have
decided
not
to
call
witnesses, directed
the
parties
in
the
petition,
to
file
their
closing
addresses
or
submissions for
consideration
by
the
Court
in
resolving
the
issues
set
down
for
trial.
SUBMISSIONS
BY
THE
PETITIONERAND
THE
RESPONDENTS.
The Respondents
filed
their
written
submissions
as
directed
by
this
Court
on
17th February
2021.
Petitioner,
on
the
other
hand,
did
not
comply with
the
directives of
the
Court
to
file
his
closing
address
or
submission
by
the
close
of
17th
February, 2021.
He,
however,
later
sought
leave
of
the
Court
to
file
it
out
of
time
which
the Court
granted.
He
therefore
filed
his
submission
or
closing
address
on
the
23rd
of
February
2021. We
shall
refer to
the
relevant
portions
of
the
submissions
or
closing
addresses when
necessary,
in
addressing
the
issues
set
down
for
determination.
EVALUATIONOFTHE
EVIDENCEON
RECORDAND
THE
DECISION
OF
THE COURT
This
Court
set
down
five
(5)
issues
for
determination.
These
are:
1.
Whether
or
not
the
Petition
discloses
any
reasonable
cause
of action.
2.
Whether
or
not
based
on
the
data
contained
in
the
declaration
of the
1st Respondent
of
the
2nd
Respondent
as
President-Elect,
no candidate
obtained
more
than 500/0
of
the
valid
votes
cast
as required
by
article
63(3)
of
the
1992
Constitution.
3.
Whether
or
not
the
2nd
Respondent
still
met
the
article
63(3)
of
the1992
Constitution
threshold
by
the
exclusion
or
inclusion
of
the Techiman
South
Constituency
Presidential
Election
results.
4.
Whether
or
not
the
declaration
by
the
1st
Respondent
dated
9th December,
2020
of
the
results
of
the
Presidential
elections conducted
on
the
7th
December,
2020
was
in
violation
of
article 63(3)
of
the
1992
Constitution.
5.
Whether
or
not
the
alleged
vote padding
and
other
errors complained of
by
the
Petitioner
affected
the
outcome
of
the Presidential
election
results
of
2020.
We
shall
now
address
the
issues
settled
for
determination
in
this
petition.
ISSUE
1
REASONABLE
CAUSE
OF
ACTION
The first
issue
is
whether
or
not
the
petition
discloses
a
reasonable
cause
of action.
Though
this
issue
was
raised
by
the
Respondents
as
a
preliminary
point, the
court
decided
to
deal
with
it
alongside
the
determination
of
the
substantive issues
settled
for
the
trial. The
court
accordingly
ordered
the
parties
to
file
their respective
submissions
on
the
issue.
The
case
of
the
Respondents
on
this
issue
is that
examining
the
petition
and
considering
the
reliefs
thereof,
no reasonable cause
of
action
has
been
raised
to
properly
invoke
the
jurisdiction
of
the
court, under
Article
64
of
the
1992
Constitution,
and
for
that
matter
the
petition should be
dismissed
summarily.
According
to
the
respondents
the
Petition
does
not
challenge
the
voting
process and
the
counting
of
ballots neither
does
the
Petition
challenge
the
collation
of votes
from
the polling
stations
through
to
the National
Collation
Center
and
the declaration
of
the
results
of
the
Presidential
Election.
The Respondents
argued further
that
the
thrust
of
the
petitioner's
complaints
relates
to
the
errors
contained in
the
declaration
of
the
winner
of
the
Presidential
Election
by
the
Chairperson
of the
1st
Respondent
on
the
9th
December
2020,
and
the
subsequent
correction
of the
errors.
The
Respondents
posited
that
the
fac alleged
in
the
petition
and reliefs
thereof
do
not
meet
the
threshold
of
challenging
the
validity
of
the Presidential
Elections
as
envisaged
under
Article
64
(1)
of
the
1992
Constitution.
The
Petitioner
opposed
the
preliminary
objection
and
argued that
the
petition discloses
a
cause
of
action
against
the
respondents.
The
Petitioner
argued,
for
example,
that
the
petition
alleges
that
the
figures
used by
the
Chairperson
of
the
1st
Respondent
to
declare
the
results
was
in
breach
of the
constitution;
that
the figures
supplied
by
the
1st
Respondent
did
not at
all reflect
the
actual
results
of
the
elections;
that
the
1st
Respondent
officials
padded votes
in
favour
of
the
2nd
Respondent
and
also
alleged
wrong
aggregation
of
votes. The
Petitioner
therefore
submitted
that
the
objection
be
dismissed.
It
is
trite
that
a
party
such
as
the
Petitioner
who
initiates
an
action
in
court
against another
must
have
an
accrued
cause
of
action.
A
cause
of
action
is
the
existence of
facts
which
give
rise
to
an
enforceable
claim
or
a
factual
situation
the
existence of
which
entitles
one to
obtain
from
the
court
a
remedy
against
another.
Generally, before
a
party
issues
a
writ,
he
must
have
a
right
recognized
in
law,
which
right has
been
violated
by
the
defendant.
In ascertaining
whether
the
petition
the subject
of
this
action
discloses
a
reasonable
cause
of
action,
it
is
important,
that the court
critically
examine
the
petition
so
filed,
in
particular
the grounds,
the reliefs
endorsed
therein,
and
the
answers
filed
by
the
Respondents,
for
the
court to
satisfy itself
that
on
the
face
of
the
petition,
triable
issues
have
been
raised. These
issues
could
be
issues
of
fact,
law
or
both
law
and
fact.
We
think
that once the court
is,
satisfied
that
the issues
raised
in
an
originating
process
such
as
a petition
or
a
writ
is
not
frivolous
then
a
cause
of
action
has
been
disclosed
to invoke
the
jurisdiction
of
the
court.
In
the
case
of
Daasebre
Asare
Baah
II
&.
4
Others
v.
Attorney-
General (20l0)
SCGLR463,
this
court
speaking
through
Georgina
Wood,
CJ,
stated
thus:
"to
identify
the real
substances
of
actions
brought
before
the court,
we
have
observed
that
the
proper
approach
is
to
examine the
writ
as
well
as
the
pleadings, in
this
type
of
litigation,
the reliefs
and
the
facts
verified
by
affidavit "
Further,
it
is
always
the
duty
of
a
court
not
to
assume
jurisdiction
over
a
suit
where the
court
had
no
jurisdiction
over
either
the
subject
matter
of
the
suit,
the
parties to
the
action
or
where
a
party
to
the
suit
is
not
clothed
with
capacity
regarding the
subject
matter
in
issue.
Again,
a
court
may
not
assume
jurisdiction
over
a
case where
issues
of
limitation,
estoppel per
rem
judicata
are
raised,
and
proved
as preliminary
points.
In
the
circumstances
of
any
of
the
above
being
applicable
the court
ought
not
to
assume
jurisdiction
to
determine
the
merits
of
the
case
before it.
In
the
absence
of
the
existence
of
any
of
these
factors the
Court
decided
to incorporate
its
ruling
on
this
issue
in
its
final
judgment.
In
this
petition,
the
Petitioner
was
one
of
the
candidates
who
contested
the Presidential
Election
held
on
the
7th
of
December
2020
and
thus
had
the
right
to challenge
the
validity
of
the
results
declared
by
the
Chairperson
of
the
1st
respondent
if
he
is
so
aggrieved.
The
Petitioner
by
this
petition
is
challenging
the act
of
the
Chairperson
of
the
1st
Respondent
declaring
the
2nd
Respondent
the winner
of
the
elections
on grounds
that
the
2nd
Respondent
did
not
cross
the constitutional
threshold
of
more
than 50%
votes.
The
Petitioner
has
also
alleged wrong
aggregation
of
votes
and
vote
padding
by
officers
of
the
1st
Respondent
in favour
of
the
2nd
Respondent.
We
are
of
the
opinion
that
these
allegations
relate to
the
integrity
of
the
election
and
if
proved
may
impact
the
validity
of
the
election. The
allegations
thus
provide
enough
grounds
for
the
invocation
of
the
jurisdiction of
this
court
under
Article 64 of
the
1992
Constitution
and
thus
confer
on
the Petitioner
a
cause
of
action
to
initiate
the
action.
The
2nd
Respondent
at
paragraph
23
of
his written
submissions
in
support
of
the prelim
inary
objection
did
concede
that
the
allegation
of
wrong
aggregation
of
votes and
vote
padding
could
be
described
as
irregularities
in
an
election
but
the
number of
votes
involved
in
the allegations
cannot
materially
affect
the
outcome
of
the election.
On
this
concession,
as
well
as
our
own
thinking,
we
are
convinced
that the
Petition
discloses
a
reasonable
cause
of
action.
We
wish
to
state
that a
court called
upon
to
decide
whether
or
not
a
party
has
a
cause
of
action
must
not
dwell so
much
on
the
strength
of
that party's
case,
since
that
can
only
be
determined
if the
matter
is
submitted
to trial.
For
example,
in
this
Petition,
the
court
must assume
jurisdiction
in
order
to
determine;
whether
the
averments
regarding the
declaration
of
results
and
the
issue
of
Cl
135
are
sustainable
in
law,
whether
there was
vote
padding
and
if
so
whether·
it
had
any
impact
on
the
results
declared
by the
Chairperson
of
the
1st
Respondent.
On
this
issue
therefore,
the
argument
that the
Petitioner
may
have
a
weak
case is
no
good
ground
to
summarily
dismiss
the petition
as
contended
by
the
respondents.
See
Appiah
II
v.
Boakye
(1993-94)
1GLR
417,
where
this
Court held
that
whenever
the
pleadings
in
a
case
raised some
questions
fit
to
be
decided
by
evidence,
the
mere
fact
that
a
party's
case
or defence
might
be
weak
would
be
no
ground
for
striking it
out.
On
this
point,
we
agree
with
the
decision
in
the
oft-quoted
case
of
Dyson
v. (1911)
Attorney
General
1KB
410
cited
by counsel
for
the
Petitioner
on terminating
proceedings
without
plenary
trial.
In
that
case
Moulton
LJ
said
at
page
419
thus;
"the
court
will
not
permit
a
plaintiff
to
be
driven
from
the judgment
seat
without
considering
his
right
to
be
heard,
except
in
cases
where
the
cause
of
action
is
obviously
and
almost incontestably
bad"
Having
carefully considered
the
pleadings
especially
the
constitutional
provisions referred
to
and
the
issues
raised
by
the
parties,
it
is
our
view
that
this
petition
is not
incontestably bad
in
law,
or
frivolous
and
vexatious
such
that
it
ought
to
be summarily
dismissed.
Any
alleged
breach
of
the
fundamental
law
of
the
land
must be
carefully
examined
by
this
court
as
the
only
court
clothed with
jurisdiction
to do
so.
It
is
on
the
basis
of
these
reasons
that
we
hold
that
the
preliminary
objection raised
by
the
respondents
herein
should
be overruled
for
the
petition
to
be determined
on
the
merit.
ISSUE
2
VALIDITY OF
THE
DECLARATION
OFTHE
RESULT
OF
THE
PRESIDENTIAL ELECTION
We
will
now
address
issue
(2),
which
is
'whether or
not
based
on
the
data contained
in
the
declaration
by
the
1st
Respondent of
the
2nd
respondent
as President
-elect
no
candidate
obtained more
than
500/0
of
the
valid
votes
cast
as required
by
Article
63
(3)
of
the
1992
Constitution.'
The
source
of
this
issue
could be
traced
to
the
errors
in
the
declaration
made
by
the
Chairperson of
the
1st
Respondent
on
the
9th
of
December
2020.
In
that
declaration
which
was
tendered
as
Exhibit
'A'
by
PW1,
Mr
Asiedu
Nketia,
the
Chairperson
of
the
1st
Respondent was
seen
and
heard
giving
the
particulars
of
the
total
votes
of
each
of
the
twelve candidates
obtained
at
the
end
of
the
polls
excluding
the
votes
from
Techiman South
Constituency,
which
was
still
outstanding.
There
is
no
doubt
that
in providing
particulars
of
the
votes
cast,
the
Chairperson
of
the
1st
Respondent
announced
the
figure
13,434,574,
when
she
was
referring
to
the
total
valid
votes cast,
which
was
in
actuality
13,121,111.
As
a
result
of
this
erroneous
reference, the
petitioner
pleaded
at
paragraphs
6,
7,
8,
9
and
10
of
the
petition,
which
are re-produced
as
follows:
"6.
Purporting
to
declare
the
results,
Mrs
Jean
Adukwei
Mensa, Chairperson
of
1st
respondent
and
the
Returning
Officer
for
the Presidential
Election
said:
At
the
end
of
the
transparent,
fair, orderly
timely
and
peaceful
Presidential
Elections
the
total
number of
valid
votes
cast
was
13,434,574
representing
79% of
the
total registered
voters"
7.
In
the
declaration,
Mrs
Jean
Adukei
Mensa, Chairperson
of
1st
respondent
and
the
Returning
Officer for
the
Presidential
Election, further
said
that
2"d
respondent of
the
NPP
obtained
6,730,413 votes
being
51.595%
of
the
total
valid
votes
cast.
8.
The
claim
that
the
percentage
of
the
total
votes
cast
was 51.595%
of
the
total
valid
votes
that
she
herself
distinctly
stated to
have
been
13,
434,
574, was
manifest
error,
as
votes
cast
for
2"d respondent would
amount
to
50%
and
not
the
51.595% erroneously
declared.
9.Mrs
Jean
Adukwei
Mensa,
Chairperson
of
1st
respondent
and
the Returning
Officer
for
the
Presidential
Election, further
declared that: "John
Dramani
Mahama
of
the
NDC obtained
6,214,889 votes,
being
47.366%
of
the
total
valid
votes
cast.
10.
From
the
total
valid
votes
cast
of
13,434,
574,
the
petitioner's percentage
would
be
46.260%
and
not
the
47.366%
erroneously declared.
"
From
the
evidence on
record,
it
seems
the
petitioner
built
his
case
around
this figure
of
13,434,574
erroneously
announced
by
the
Chairperson
of
1st
Respondent as
the
total valid
votes
cast.
The
description
she
gave
to
this
figure
was
wrong. Exhibit
'A'
which
is
a
video
clip
of
the declaration
gave
details of
all
the
votes obtained
by
all
the
Presidential
candidates
and
this
gave
a
total
valid
votes
cast
of 13,121,111.
Out
of
this
figure
the
2nd
respondent
Nana
Akufo-Addo
of
the
NPP obtained
6,730,
413,
while
the petitioner,
John
Dramani
Mahama
obtained 6,214,889.
The
evidence
on
record
is
that
the
Chairperson
of
1st
Respondent
having
detected the
error
in
announcing
the figure
of
13,434,574
as
the
total
valid
votes
cast corrected
the
error
and
issued
a
Press
Release
on
the
10th
of
December
2020.
The thrust
of
the
issue
under consideration
is
the
error
in
the
description
of
figures quoted
by
the
Chairperson
of
1st
respondent
while
declaring the
results
of
the Presidential
Election.
In
this
petition,
evidence has
been
adduced
through
PW1,
Mr
Asiedu
Nketia
to show
that
the
actual
total
valid votes
cast
excluding
the
votes
from
Techiman South
at
the
time
the
declaration
was
made
was
13,
121,111.
This
figure
has been admitted
by
the
Petitioner
in
paragraph
12
of
his
petition
which
reads
as
follows;
"12.
If
the
total
number
of
valid
votes
standing
to
the
names
of each
of
the
Presidential
Candidates
is
summed
up,
this
would
yield a
total
number
of valid
votes
cast
of
13,121,111,
a
figure
that
is completely
missing
from
the
purported
declaration by
Mrs
Jean AdukweMensa
on
7TH December
2020
and
the
purported rectification
on
10TH
December
2020.
"
In
law
a
party
is
bound
by
his
pleadings
and
the
only
way
he
could
free
himself from
the
averments
in
a
pleading
is
through
amendments.
See
Hammond
v
Odoi (1982-83)
2
GLR
1215.
The
above
pleading
was
supported
by
the
evidence
of
PW
1
Mr
Asiedu
Nketia
while under
cross-examination
on
the
1st
of
February
2021,
by counsel
for
the
2nd
Respondent.
The
relevant
part
of
the
cross-examination
is
reproduced
below:
"Q.
I
am
saying
that
from
the
declaration
in
the
video
clip
that
we
just saw
which
really
is
the
basis
of
all
your
case,
and
you
should
know what
is
in
it,
the
total
number of
valid
votes
that
2"d
Respondent obtained
is
6,730,413?
A.
That
is
correct
my
Lords.
Q.
The
total
number
of
votes
that
the
petitioner
obtained
from
the declaration
announcement,
your
exhibit
'A'
is
6,214,889?
A.
That
is
so
my
Lords.
Q.
And
I
am
also
putting
it
to
you
that
if
you
do
a
sum
of
these
valid votes......
By
Court:
You
asked
this
question
about
an
hour
ago
more
than
once or
twice
and
it
has
been
answered.
Q.
Can
you
tell
the
court
what
is
6,730, 413
as
a
percentage
of 13,
121,111
?
A.
My
Lords
is
51.29453
ad
infinitum.
So
it
can
be
round
up
to
51.295%.
Q. So
51.295%
not
so?
A.
Yes
Q.
What
about
the
Petitioner, his
total
valid
votes
are
6,214,889. What
is
this
sum
as
a percentage
of
13,121,111?
A.
It
is
47.365569
ad
infinitum.
So
it
can
be
rounded
up
to
47.366%
Q.
So you
admit
that
from
the
Chairperson
of
1st
Respondent's
declaration
on
9th
December,
2"dRespondent
crossed
the
more
than 50%
threshold?
A.
From
the
declaration
as
announced
•••••.
Q.
From
the
figures
that
we
just
calculated,
these
figures
which
were announced, if
you
do
them
as
a
percentage
of
the
actual
total
valid votes,
these
are
the
percentages
you
get
for
the petitioner
and
the
2"d Respondent.
That
is
what
I
am
putting
to
you?
By
Court:
Mr.
Akoto
Ampaw,
when
you
recapture
your
question,
this is
what
raises
a
difficulty.
Your
previous
was,
the 2"d
Respondent crossed
the
50%
threshold. In
recapturing,
you
changed
the
second part.
So
kindly
stick
to
the
question.
Q.
I am
saying
that
from
the
calculation
of
the
figures
of
Petitioner and
2"d
Respondent,
2"d
Respondent
clearly
crossed
more
than
50% threshold?
A.
Well
if
the
figures
are
correct,
yes.
Q.
Again,
you
see
that
when
you
calculated
the
percentage
for
the
2"d
Respondent
you
came
to
a
figure
of
51.
295%?
A.
Yes
my
Lords.
"
Now,
from
the
pleadings
of
the
Petitioner
at
paragraph
12
thereof
and
the
evidence elicited
from
Mr.
Asiedu
Nketiah,
as
shown
above,
there
is
no
doubt
that
the Petitioner
accepts
that
the
total
valid
votes
cast
was
13,
121,111
and
not
the
figure 13,434,574
erroneously
described
by
the
Chairperson
of
1st
Respondent
on
the
9th December
2020.
Having
determined
on
the
evidence
adduced
at
the
trial
that the
total
valid
votes cast
was
13,
121,
111, there
is
no
legal
basis
for
anyone
to
contend
that
a
different figure
of
13,
434,
574
be
used
as
the
total
valid
votes
cast
in
measuring
the
more than
50%
threshold
required
under
Article
63
(3)
of
the
1992
Constitution.
Indeed,
PW1,
Mr.
Asiedu-Nketiah
under
cross-examination
on
the same
1st
February,
2021
by
counsel
for 2nd
Respondent
admitted
that
it
will
be
wrong
for anybody
to
use the
total
votes
cast
to
measure
the
threshold.
PWl
testified
under cross-examination
as
follows:
"Q.
So
you
admit
that
it
is
completely
wrong
for
anybody
to
use
the total
votes
cast
as a basis
for
determining
the
percentage
of
votes obtained
by
different
candidates?
A.
Yes
Q.
Anybody
who
does
that,
he
cannot
be
accepted
anywhere
in Ghana.
A.
Yes,
my
Lord."
The
cross-examination
of
PWl
continued
on
the
same
day
as
follows:
"Q.
I
am
putting
it
to
you
that
you
used
this
erroneous
figure
as
a basis
for
calling
for
your
re-run?
A.
The
question
again,
I want
to
get
the
question
again
so
I can answer.
Q.
You
cannot
use
that
wrong
figure
as
a
basis
for
your
claim
that there
should
be
a
re-run
between
the
2nd
Respondent
and the petitioner.
A.
Yes,
my
Lord."
By the
above
evidence,
PW1,
Mr Asiedu
-Nketiah
conceded
that
the
figure representing
total
votes
cast,
that
is
13,434,574,
cannot
be
the
basis
for
measuring the
more
than
500/0
threshold
required
for
a
candidate
to
be
elected
the
President, under
Clause
3
of
Article
63
of
the
1992
Constitution
which
provides
thus:
A person
shall
not
be
elected
as
President
of
Ghana
unless
at the presidential
election
the
number
of
votes
cast in
his
favour
is
more than
fifty
per
cent
of
the
total
number of
valid
votes
cast
at
the election.
"
The
above
provision
of
the
Constitution
is
clear,
that the
threshold
to
be
crossed by
a
candidate
declared
as
President
should
be
more
than
fifty
percent
(500/0)
of the
total
valid
votes
cast
and
not
the
total
votes
cast.
From
the
evidence
on
record,
it
is
clear
to
us
that
it
is
absolutely
wrong
to
hold
on to
the
error
committed
by
the
Chairperson
of
15t
Respondent
in
announcing
the total
votes
cast
when
from
the
data
used
in announcing
the
results
the
true
figure representing
the
total
valid
votes
cast
actually
totalled
and was
known
to
be
13,121,111.
The
evidence
also
is
that
this
error
was
corrected.
More
so,
there
is no
evidence
on
record
showing
that the
error
and
subsequent
correction
had
any adverse
impact
on
the
result
so
declared.
As
demonstrated,
the
candidate
declared as
winner
still
passed
the
more
than
fifty percentage
threshold
as
required
by Clause
3
of
Article
63
of
the
1992
Constitution.
It
has
also
been
argued
on
behalf
of
the
petitioner
that
the
Chairperson
of
1st
Respondent
could
not
have
on
her
own
corrected
the
error
she
made,
without consulting
the
stakeholders
of
the
2020
Presidential
Election.
No
statute
or
Regulation
was
cited
to
us
by
Counsel
for
the
Petitioner
for
this submission
and
our
collective
industry
has
not
revealed
any.
This
submission
does not
find
favour
with
the
court
in
view
of
Article
297(c)
of
the
1992
Constitution, which
provides
thus:
"297.
In
this
Constitution
and
in
any
other
law:-
(c)
where
a
power
is
given
to
a
person
or
authority
to
do
or
enforce the
doing
of
an
act
or
a
thing,
all
such
powers
shall
be
deemed
to
be also
given
as
are
necessary
to
enable
that
person
or
authority
to
do or
enforce
the
doing
of
the
act
or
thing.
"
It
is
also
important
to
make
reference
to
section
22
of
the
Interpretation
Act,
2009
Act
792,
which
deals
with
omission
and
errors
in
the
course
of
executing administrative
or
executive
functions.
The
section
provides
as
follows:
"22
(1)
Where
an
enactment
confers
a
power
or
imposes
a
duty
on a
person
to
do
an
act
or
a
thing
of
an
administrative
or
executive character
or
to
make
an
appointment,
the
power
or
duty
may
be exercised
or
performed
in
order
to
correct
an
error
or
omission
in
a previous
exercise
of
the
power
or
the
performance
of
the
duty.
"
We
are
therefore
of
the
considered
opinion
that
the
Chairperson
of
the
1st
Respondent
had
the
right
to
effect
the
correction
she
made
when
she
erroneously referred
to
total
votes
instead
of
the
total
valid
votes
cast
in
the
declaration.
In
concluding
this
issue,
we
hold
that
there
is
evidence
on
record
to
show
that based
on
the
data
contained
in
the
declaration
of
the
Chairperson
of
the
1st Respondent,
the
2nd
respondent
obtained
more
than
50%
of
the
valid
votes
cast as
required
by
Article
63(3)
of
the
1992 Constitution.
ISSUE
3
EFFECT
OF
TECHIMAN
SOUTH
CONSTITUENCY
PRESIDENTIAL ELECTION
RESULT
The
next
issue
is
whether
or
not
the
2nd
respondent
still
met
the
Article
63
(3)
of the
1992
Constitution
threshold
by
the
exclusion
or
inclusion
of
the
Techiman South
Constituency
Presidential
Election
results.
This
issue
is
partly
addressed
by the
resolution
of
issue
(2)
above.
The
declaration
by
the
Chairperson
of
1st
Respondent
which
was
tendered
in
evidence
by
Mr.
Asiedu
Nketiah
as
Exhibit
'A', clearly
shows
that
the
votes
declared
was
without
the
votes
from
Techiman
South Constituency.
It
thus
shows
that
from
evidence on
record,
as
already
held,
without the
votes
of
Techiman
South
Constituency,
the
2nd
respondent
satisfied
the threshold
of
more
than
50%
of
the
valid
votes
cast.
The
evidence
on
record adduced
through
the
cross-examination
of
PW1,
Mr.
Asiedu
Nketiah,
as demonstrated
above,
confirms
that
the
2nd
respondent
obtained
51.295%
of
the total
valid
votes
cast
excluding
the
votes
from
Techiman
South
constituency.
What
was
the
result,
when
the
votes
from
Techiman South
Constituency
Presidential
election
were
added
to
the
respective
votes
of
the
2nd
Respondent
and the
petitioner?
It
is
important
to
state
that
at
the
time
the
petition
was
filed
the results
of
the
Presidential
Election at
Techiman
South
constituency
had
been announced.
The
result
of
the
Techiman
South
constituency
was
part
of
Exhibit 'E' which
was
tendered
by
PW1,
Mr. Asiedu-Nketiah.
The
evidence
on
record
clearly shows
that even
though
PWl
complained about
the
tabulation
of
the
total
valid votes
and
the
total
votes
cast,
the
votes
obtained
by
the
individual
candidates were
not
challenged.
The
results
were
certified
by
agents
of
the
petitioner
and
the 2nd
Respondent.
According
to
Exhibit
'E/,
out
of
the
total
voting
population
of 128,018,
the
total
valid
votes
cast
was
99,436
out
of
which
the
petitioner
obtained 52,034
increasing
his
National
total
valid
votes
to 6,266,923
(6,214,889+S2,034).
The
2nd
respondent
also
obtained 46,379
bringing
his National
total
valid
votes
obtained
to
6,776,792
(6,730,413 +
46,379)
It
has
been
established
without
any
dispute whatsoever
that
the
national
total valid
votes
cast
without
the
votes
from
Techiman
South
was
13,121,111,
so
adding the
total
valid
votes
from
Techiman
South
will
give
a
National
valid
votes
cast
as 13,
220,
547
(13,121,111 +
99,436).
From
the
calculations
above,
the
total valid
votes
obtained
by
the
2nd
Respondent
was
6,776,
792
which
gives
a percentage
of
the
total
National
valid
votes
for
the
2nd
respondent
as
51.259%. The
computation
therefore
shows
clearly
that
with
the
inclusion
of
the
Techiman South
constituency
Presidential
results,
the
2nd
respondent
nonetheless
made
the more
than
50%
threshold
required
under
Clause
3
of
Article
63 of
the
1992 Constitution.
It
has
been
argued
by
the
Petitioner
that
going
by
the
announcement
of
the Chairperson
of
the
1st
respondent,
the
2nd
respondent
would
not
have
obtained the
more
than
50%
threshold
if
all
the
votes
of
Techiman
South
was
allocated
to the
petitioner.
This
will
mean
crediting the
Petitioner
with
all
the
128,
018
votes being
the
total
voter
population
of
the
Techiman
South
constituency,
on the presumption
that
every
registered
voter
did
vote
and
there
were
no
rejected
ballot. The
Petitioner
would
have
obtained
6,342,907(6,214,889
+128,018), and
this would also
have
increased
the
National
total
valid
votes
to
13,
249,
129 (13,121,111
+128,018).
With
this
scenario,
the
total
valid
votes
obtained
by
the
2nd
Respondent
would remain
6,730,413,
meaning
that
the
2nd
Respondent
obtained
zero
votes
in Techiman
South
Constituency.
The
2nd
Respondent's
votes
expressed
as percentage
of
the
total
valid
votes
cast
(13,249,129)
will
still
give
2nd
Respondent
50.7989%
of
the
valid
votes
cast
thus
meeting
the
threshold
required
of
Article 63(3)
of
the
1992
Constitution.
The
above
analysis
which
is
based
on
the
scenario
that
the
2nd
Respondent
did
not gain
any valid
vote
in
Techiman
South
Constituency
is very
inaccurate
and misleading
since the
results
from
that
constituency
were
known,
even
before
the Petition
was
filed
in
this
Court.
The
end
result
is
that
the
2nd
Respondent
still
met the
threshold
of
more
than
50%
of
the
total
valid
votes
cast with
the
exclusion
or inclusion
of
the
Techiman
South
Constituency
Presidential
election
results.
Contrary
to
counsel
for
the
Petitioner's
written
address
that
paragraph
13
and
14 of
the
Petition
stands
unchallenged
on
record
by
virtue
of
Order
23rules
(1)
and (3)
of
the
High
Court
(Civil Procedure)
Rules,
C
I
47
since
the
1st
Respondent
failed to
answer
the
Notice
to
Admit
Facts
served
on
it
the
petitioner
tendered
Exhibit
'8' the
Press
Release
of
the
1st
respondent
dated
10th
December
2020.
The
pleadings,
Exhibit
'8'
and
the
testimony
of
PW1
spoke
to
issues
raised
in
this request
to
Admit
facts.
We
have
already
held
that
the correction
made
by
the Chairperson
of
the
1st
respondent
in
the
Press
Release
was
within
her
mandate
by
virtue
of
Article
297 (c)
of
the
1992
Constitution
and
section
22
(1)
of
the
Interpretation
Act
2009,
Act 792.
Scondly,PWl
Johnson
Asiedu
Nketia
under
cross
examination
admitted
that
the total
valid votes
obtained
by
all
the
twelve
Presidential
candidates
captured
in Exhibit
'A'
is
13,
121,
111.
As
a
matter
of
law
regarding
the
application
of
Order
23
of
CI
47,
we
must
make it
clear
that
with
the
coming
into
force
of
CI
99
no
party
in
a Presidential
election dispute
can
arrogate
to
himself or
apply
the
rules
of
other
courts
without
this Court's
expressed
adoption
of
those
rules.
There
was no
application
to
invoke Order
23
of
CI
47
before
this
Court.
ISSUE
4
WHETHER
THE
DECLARATION
OF
9TH
DECEMBER
WAS
IN
VIOLATION OF ARTICLE
63(3)
OF
THE
1992
CONSTITUTION?
This
issue
seeks
to
ascertain
whether
on
the
9th
of
December,
2020, the
pt respondent
who
was
also the
Returning
Officer
of
the
Presidential
Elections declared
a
candidate
who
contested the
elections as
having
been
validly
elected President
when
that
candidate
did
not
meet
the
required 500/0
threshold
under Article
63
(3)
of
the
1992
Constitution.
The
case
put
up
by
the
Petitioner
that
has generated
this
issue
has
been particularly
set
out
in
paragraphs
26,
27,28,
and 29
of
the
Petition
which
for purposes
of
emphasis
are
reproduced
as
follows:
"26.
The
gazette
notice
of
the
outcome
of
the
Presidential
Election
is
required
to be
based
on
the
declaration
actually
made by
Mrs
Jean
Adukwei
Mensa
as
the Chairperson
of
the
1st
Respondent
and
the
Returning
Officer
of
the
results
of
the Presidential
Election.
27.
The
gazette notification
contained
in
CI
135,
being
notification
of
the public declaration
made
by
Mrs Jean
Adukwei
Mensa
on
the
evening
of
9th
December,2020
is
also
unconstitutional,
null
and
void
of
no
effect
whatsoever
and therefore
liable
to
be
set
aside.
28.
On
10th
December,
2020,
an
unsigned
Press
Release
of
1st
Respondent
claimed that its
Chairperson,
Mrs
Jean
Adukwei
Mensa
had
"inadvertently"
used
the
figure of
13,433,573
for
the
total
valid
votes
cast.
The
said
release
claimed
that the total
valid
votes
cast
is
not
13,119,460.
A
copy
of
the
Press
Release
is
attached and marked
as
exhibit
'0'
and available
on
the
1st
respondent
website;
www.ec.gov.gh
as
at
11:45
hours
GMT
on
the
29th
December
2020.
29.
In
this
purported
corrective
Press
Release,
1st
Respondent
introduced
two completely
new
figures
of
the
total
votes
in
the
Presidential
Election.
Thus
there was no
correction
properly
so
called,
since
to
be
valid,
a
correction
of
a
prior mistake
must
correctly
name
the
mistake
to
be
corrected.
In
this
case,
the
mistake to
be
corrected
was
itself
mistakenly
stated.
The
numbers
13,434,574
and
13,433,573
are
completely
different
with
a
margin
of
1001
votes."
Both
the
1st
and
2nd
Respondents
have
made
specific
denials
of
these
averments in
their
respective
answers
to
the
Petition.
The 1st
Respondent
in
denial
of
these allegation
averred
as
follows:
"1st
Respondent
therefore
says
that
the
Petitioner's
simulation of
the
results which
deliberately
uses
and
relies
on
the
total
number
of
votes
cast,
which was
inadvertently mentioned
as
total
number
of
valid
votes
at
the
Press Conference
to
arrive
at
the
conclusion
that
the
percentage
of
valid
votes
for 2nd
Respondent
would
not
meet
the
Article
63
(3)
threshold is
misleading, untenable
and
misconceived"
The
2nd
Respondent
denial
as particularly
averred
to
in
paragraph
30
of
his amended
answer
to
the
petition
is
as
follows:
The
2nd
Respondent
does
not
admit
paragraphs
28
and
29
of
the
Petition
and says
in
further
answer
thereto,
that
in
any
event,
the
margin
of
1001
votes contained
in
the
alleged error,
cannot
under
any
circumstance
affect
the outcome
of
the
election,
even
if
added
to
Petitioner's
votes".
It
is
this
conflicting
positions of
the
parties
which
have
engendered
the
setting down
of
the
above
issue
for
determination
by
this
court.
As
was
accentuated
by this
court
per
Benin,
JSC
in
the
case
of
Sarpong
(deed)
(substituted
by)
Koduah
v
Jantuah
(2017-20)
1SCGLR736
at
page
747,
the
principle
of
law is
that
the
burden
of
persuasion
rest
with
the
person
who
substantially
asserts
the affirmative
of
the
issue
on
the
pleadings
and
this
is
the
principle
of
law
that
has been
unremittingly
followed by
our
courts
for
decades.
By
law
therefore,
the burden
of
persuasion
on
this
issue
is
cast
squarely
on
the
Petitioner.
Besides,
there
is
a constitutional
presumption of
validity
of
the
Constitutional
Instrument
in
which
a
person
is
named
as
President
of
Ghana
in
the
outcome
of
a Presidential
Election.
This
has
been
provided
for
under
Article
63(9)
of
the
1992Constitution
as
follows:
An
Instrument
which-
a. is
executed
under
the
hand
of
the
Chairman
of
the
Electoral Commission
and
under
the
seal
of
the
Commission;
and
b.
states
that
the
person
named
in
the
instrument
was
declared elected
as
the
President
of
Ghana at
the
election
of
the President;
Shall
be
prima
facie
evidence
that
the
person
named
was
so electedThe
presumption above
is
reverberant
of
the
statutory
presumption
that
is provided
for
in
section
37
of
the
Evidence
Act 323),
which
is reproduced
below
as
follows;
"
37(1)
It
is
presumed
that
official
duty
has
been
regularly performed."
Expatiating
on
the
scope
of
the
application of
section
37
(1)
of
the
Evidence
Act, Aikins,
JSC
delivering
the
judgment
of
this
court
in
the
case
of
Brobbey
and
Others
v Kwaku
(1995-96)
1
GLR
125
observed
thus
'This states
the
common
law
presumption
of
Omnia
Praesumuntur rite
esse
acta
and
the
Commentary
on
the
Evidence
Decree confirms
at
page
31
that
it
is
generally
applied
to
judicial
and governmental
acts
but
may
also
be
applied
to
duties
required
to
be performed
by
law".
Accordingly,
a
presumption
is
thus
a
rule
of
law,
statutory
or
judicial,
which
leads to
a
decision
on
a
particular
issue
in
favour
of
the
party
who
establishes
it
or
relies upon
it,
unless
it
is
rebutted.
In
Halsbury's
Law
of
England,
fourth
edition
Re-issue Volume
11(2)
at
paragraphs
1008-1009
page
883
which
deal
with
rebuttal presumptions
of
law,
the
authors
lucidly
state
the
presumption
thus:
A
rebuttable
presumption
of
law
is
one
which
leads
to
a
decision on
a
particular
issue
in
favour
of
a
party
who
establishes
it
or
relies upon
it, unless
it
is
rebutted.
Rebuttable
presumptions
of
law
may be
created
by
statute or
may
exist
at
common
law,
and
may
cast either
a
legal
or
an
evidential
burden
on
the
party
seeking
to
rebut the
presumption.
"
The presumption
that
is
raised
in
Article
63(9)
of
the
1992
Constitution
undoubtedly is
a
rebuttable
one
as
the
1992
Constitution
makes
room
for
the contestation
of
the
Instrument
aforesaid.
Being
a
rebuttable
presumption therefore,
there
is
no
gainsaying
that
the
onus
of
its
rebuttal
lies
on
the
party
against
whom
the
presumption
operates.
The
onus
of
rebuttal evidence
that
the
2nd
Respondent
was
validly
elected
in accordance
with
the provisions
of
Article 63(3)
of
the
1992
Constitution
thus
rests
on
the
Petitioner who
has
mounted
a
challenge
against
the
said
process.
In
the
instant
Petition,
two
statutory
presumptive situations
exist.
Section
37
of Evidence
Act
creates
the
presumption
that
the
Chairperson of
the
1st
Respondent
regularly
performed her
constitutional
and
statutory
duties
during
the
Presidential Election
of
7th
December,
2020
leading
to
the
declaration
of
the
results
made
on 9th
December,
2020,
unless
otherwise
rebutted by
admissible,
cogent
and
credible evidence
pointing
to
the
contrary.
Additionally,
the
effect
of
the
Instrument
under the
hand
of
the
Chairperson of
the
1st
Respondent
i.e.
the
Declaration
of
the
President-elect
Instrument
2020
(CI
135)
constitutes
prima
facie
evidence that
the 2nd
Respondent
was
duly
and
validly
elected
pursuant
to
Article
63(3)
of
the
1992 Constitution.
2020.
Thus
the
presumption
created
by
the
combined
effect
of
the two
provisions which
are
constitutional
and
statutory
can
only
be
dislodged
or displaced
by
sufficient
evidence
in
law.
It
is
our
considered
opinion
that
the
error
in
the
declaration made
by
the Chairperson
of
the
1st
Respondent in
the
declaration
of
the
results
on the
9th
December,
2020, which
error,
was
acknowledged
and corrected
and which
in reality
did
not
adversely
affect
the
electoral
fortunes
of
any of
the
candidates
who contested
the
Presidential
Election
including
the
Petitioner
herein,
is insufficient
to rebut
the
presumption
aforesaid.
We
have
already
determined
in this
judgment
that
in
her
declaration
of
9th
December
2020,
the
Chairperson
of
the
1st
respondent
erroneously
announced
the figure
of
13,434,574 as
the
total
valid
votes
cast
instead
of
13,121,111,
which excluded
the
votes
from
Techiman
South
Constituency.
We
have demonstrated that
the
figures
announced
in
the
declaration
which
is
contained
in
Exhibit
'A'
in reality
represented
the
true
will of
the
voters,
in
that
no
credible
evidence has been
adduced
to
challenge
any
of
the
figures
allotted
to
the
respective candidates
from
the
Polling
Stations.
The
complaint
of
the
petitioner
relating
to
Exhibit
'A',
is
about
the
error
committed by
the
Chairperson
of
the
1st
respondent.
The
evidence
on
record
was
that
this
error
was
corrected
the
very
next
day
after the
declaration
on
the
10th
of
December
2020
through
a
Press
Release.
There
is no
dispute
that
the
Chairperson
of
the
1st
Respondent
committed
an
error
when she
made
the
declaration.
We
are
however
satisfied
from
the
evidence
on
record
that,
the
figures
announced
as representing
the
valid
votes
obtained
by the respective
candidates were
right
and
represented
the
will
of
the
voters.
We therefore
hold
that
the
error
committed
by the
Chairperson
of
the
1st
Respondent cannot
void
the
declaration,
which
actually
announced
the
true
wishes
of the voters.
To
hold
otherwise, will
mean
that
errors
in
statement
and
numbers committed
by
the
Chairperson
of
the
1st
Respondent
in
an election,
which
do
not impact
on
the
outcome
of
the
result,
could
nullify
the
actual
result.
Indeed,
as
discussed
earlier in
this
judgment
there
is
ample
evidence
that
the figures
that
were
announced
by
the
Chairperson
of
the
15t
Respondent
clearly
gave the
2nd
Respondent,
total
valid
votes
of
6,
730,
413,
which
represents
51.295%
of the
total
valid
votes
of
13,121,111.
This
satisfied
the
more
than
50%
threshold
of valid
votes
as
required
under
Clause 3
of
Article
63
of
the
1992
Constitution.
The declaration
by
the
1st
Respondent
therefore
did
not
violate
Clause 3
of
Article
63 of
the
1992
Constitution.
The
thrust
of
Petitioner's
case
is
that
by
the
collated
figures,
none
of
the
candidates
obtained more
than
the
50%
threshold
required
under
Article
63(3)
of
the
1992Constitution
and
as
such
the
1st
respondent
should
be
ordered
by
this
court to
conduct
fresh
elections
between
the
2nd
respondent
and
the
Petitioner. However,
the
Petitioner
has
failed
to
adduce
any
credible
evidence
to
establish
his claim
that
none
of
the
Candidates
obtained
more
than
the
50
%
threshold.
PW1, Mr.
Asiedu
Nketiah,
testified
under
cross
-examination
that
even though
the petitioner
had
all
the
documents
that
the
1st
respondent
used
to
coUate
the
results from
the
Polling
Stations
to
the
Regional
Collation
Center,
the
Petitioner
decided not
to
tender
them
in
evidence
to
support
the
petition.
Under
cross-examination
by
Counsel
for
the
2nd
respondent
on
the
1st
of
February 2021,
this
is
what
PWl
said
among
others:
"Q.
As
you
know,
all
the
documents
that
the
EC
was
using
to
collate the
results
from
the
Polling
Stations
right
up
to
the
Regional Centre, you
had
carbon
copies
of
them,
didn't
you?
A.
Yes
we
do
Q.
And
I
am
saying
that
you
have
not
put
together
your
carbon
copies to
show
that
indeed
nobody
won
the
elections?
A.
Yes,
my
Lords
because
that
is
not
the
purpose
of
our
petition.
We did
not
come
to
court
to
take
over the
work
of
the
Electoral Commission.
But
we
are
entitled
if
we
see
the
results
are
flawed,
they are
not
borne
out
of
data,
we
are
entitled
to
challenge
and
insist
that we
must
have
a
credible
results
and
a
declaration
that
is
on
the
votes that
were
cast
at
the
polling
stations
Q.
I
am
saying
that
you
have
not
provided
any
basis
of
your
own
for your
call
for
a
runoff?
A.
No
my
Lords,
we
have
not
brought
that
data
here,
we
did
not consider
it
necessary
to
bring
any
such
data
here."
The
evidence
is
thus clear
that
the
Petitioner
failed
to
lead
credible
evidence
to prove
his
case
that
none
of
the
candidates
who
contested
the
Presidential
elections with
him
made
the
more
than
50%
threshold
as
required
by
Clause
3
of
Article
63 of
the
1992
Constitution
and
so
there
should
be
a
re-run.
All
the
petitioner
sought to
do
by
way
of
evidence
was to
tender
Exhibit
'A'
to
demonstrate
that
the Chairperson
of
the
1st
respondent
committed
errors
in
making
the
declaration,
but as
already
stated
that
error
could
not
take
away
the
valid
votes
of
the
people.
Having
held
that
the
declaration
by
the
Chairperson
of
the
1st
respondent
on
the 9th
of
December
2020,
did
not
violate
Article
63(3)
of
the
1992
Constitution,
we will
end
the
resolution
of
issue
(4)
with
two admonitions.
The
first
is that
of
our esteemed
brother
Baffoe-
Bonnie,
JSC
in
the
case
of
Akufo
-Addo
and
Others v
Mahama
&.
Another
(supra)
at
page
439:
"Elections
are
complex
systems
designed
and
run
by
fallible
human beings.
Thus,
it
is
not
surprising
that
mistakes,
errors
or
some
other imperfection
occur
during
an
election.
Because
absolute
electoral perfection
is
unlikely
and
because
finality
and
stability
are
important values,
not
every
error,
imperfection,
or
combination
of
problems found
in
an
election
contest,
voids
the
election
or
changes
its
outcome:
The second
is
to
express
our
extreme
disagreement
with
these
positions
that
petitioner
literally
hangs
all
his
reliefs
on.
The
Petitioner
attacked
the
oral declaration
made
by
the
Chairperson
of
the
15t
Respondent
in
reliefs
(a),(b)
and (c),
and
consequently,
sought
an
annulment of
C.I
135
in
relief
(d).
He
also
invited the
court
to
injunct
the
2nd
Respondent
from
holding
himself
out
s
the
President elect
on
the
account
of
the
errors
described
in
the
declaration
in
his
relief
(e),
and for
the
court
to
order
a
re-run
between
the
petitioner
and
the
2nd
Respondent
on the
account
of
the
alleged
effect
of
these
errors
in
relief
(f).
But
as
shown
from the
evaluations
and
analysis
above,
it
was
part
of
the
Petitioner's
case
in
paragraph
6
of
the
petition
that
the
first
alleged
error
arose
because
of
a
mis-description
of the
number
of
total
votes
cast as
"total
valid
votes
cast".
The
Petitioner
also asserted
his
knowledge
of
the
total
valid
votes
cast
in
paragraph
12
of
his
petition. And
yet,
the
Petitioner
is
inviting
this
Court
to
ignore
the
substantive
truth
of
the result
of
the
election
and
give
him
reliefs
on
the
basis of
the
errors
pointed
out
in his
own
petition.
He
is
also
inviting
the
court
to
use
the
mistakes
he
has described to
tamper
with
the
true
and
known
result
of
the
Presidential
Election
and
the
will of
the
people.
By
his
relief
(a),
it
is
only
when
the
court
upholds
the
error
in
the
description
of total
votes
cast
instead
of
total
valid
votes
that
the
declaration
will
be in
breach
of Article
63
(3).
Again
by
his
relief
(b),
it
is
when
the
court ignores
the
substantive results
of
the
election
that
it
would
declare
that
no
candidate
won
more
than
50% of
the
votes.
The
Petitioner
is making
this
claim
knowing
that
if
the
Court
agrees,
the
Court
will essentially
change
the true
outcome
of
the election.
In
the combined
effect
of reliefs
(c)
and
(f),
the
Petitioner
is
asking
this
Court
to
find
the
oral
declaration made
on
9th
December
2020 to
be
unconstitutional,
null
and
void
and
yet
for
this Court
to
use
void
declaration
to
change
the
result
of
the
election
by
ordering
a
re- run
between
the
two
leading
candidates.
These
are
submissions
that
must
never
appeal
to
any
Court
of
justice,
equity
and
good
conscience.
ISSUE
5
THE
ALLEGED
VOTE
PADDING
The
last
issue
set
down
for
this
trial
is
whether
or
not
the
alleged
vote
padding and
other
errors
complained
of
by
the
Petitioner
affected
the outcome
of
the Presidential
Election
results
of
2020.
The
Petitioner
has
alleged
in
his
petition
that the
1st
respondent
favoured
the
2nd
respondent
with
padded
votes
totaling
5,662 in
32
constituencies.
In
proof
of
this allegation
the
Petitioner
tendered
through PW1,
Mr.
Asiedu
Nketiah,
Exhibit
F,
which
is
a
spreadsheet
covering
sample
details from
26
constituencies
showing
the
alleged
vote
padding
by
certain
officials
of
the
1st
respondent
in
favour of
the
2nd
Respondent.
It
is
pertinent
to
note
that
even though
the
pleadings
of
the
petitioner
alleges that
the
vote
padding
took
place
in
32
constituencies
totaling
5,662
votes,
PWl
in
his
witness
statement
testified
that the
vote
padding
rather
took
place
in
26
constituencies
and
totaled
4,693
votes.
We
also
note
that
even
though
PW1,
alleged
in
his
witness
statement
that
the
vote padding
was
done
by
some
officials
of
the
1st
Respondent,
his
evidence
did
not name
any
alleged
official.
That
leg
of
the
allegation
was
not
proved
either.
The
allegation
of
vote
padding
in favour
of
the
2nd
Respondent
was
denied
by
both
respondents.
Having
been
so
denied,
one
expected
the
petitioner
to
adduce credible
evidence
to
prove
same.
However,
the
only
evidence
adduced
on
this issue
was
the
tendering
of
Exhibit
'F',
the
spreadsheet
containing
samples
from
26 constituencies
showing
the
alleged
vote
padding.
To
be
specific,
the
allegation
as
stated
at
paragraph
36
of
Mr. Asiedu
Nketiah's witness
statement,
was
that
when
the
votes
of
2nd
respondent
obtained
in all polling
stations
as
shown
on
their respective
pink
sheets
in
the
26
constituencies are
aggregated,
the
resultant
figure
differs
from
the
figure
that
was
declared
by
1st
Respondent
for
2nd
Respondent
as
captured
on
the
summary
sheets
of
the
respective
constituencies.
Having
alleged
as
above,
one
expected
that
the
pink sheets
of
the
polling
stations
in
the
26
constituencies
would
have
been
exhibited to prove
the
vote
padding
as
alleged.
This
was
not
done
apart
from
the spreadsheet
which
was
a
self-serving
document.
PW1,
Mr
Asiedu
Nketiah
admitted that
what
he
had
tendered
were
only
samples.
But
no
effort
was
made
to
submit the
rest
if
indeed
they
existed.
Besides
the
allegation
of
vote
padding,
the
Petitioner
also
alleged
that
there
was wrong
aggregation
of
votes
totalling
960
votes
in
favour
of
2nd
respondent.
This was
contained
in
Exhibit
'E'
tendered
by
PW1,
Mr.
Asiedu
Nketiah.
We
find
the
allegation
of
vote
padding very
serious
since
its
occurrence undermines
the
integrity of
an
election,
its
impact
being
that
votes
are
unlawfully added
to
the
votes
of
a
candidate
to
increase
the
total
votes
of
that
candidate.
We have
observed
already
that
this
allegation
was
not
proved as
expected
of
the Petitioner.
However,
assuming
the
vote
padding
of
4,693 took
place
at
all,
in favour
of
2nd
Respondent
as
alleged
by
PWl
in
Exhibit
'F',
this
court
will
then
have to
ascertain
its
impact
on
the
final
results
declared
by
the
1st
respondent.
Indeed,
evidence
on
record clearly
showed
that
the
impact
of
the
alleged
vote padding
even
if
proved
would
have
been
very
insignificant
and
would
not have materially
affected
the
outcome
of
the
elections.
It
would
therefore
not
have
been a
proper
ground
for
the
annulment
of
the 2020
Presidential
Elections.
This
is
so because if
one
deducts
the
alleged
votes
padded
from
the
total
valid
votes obtained
by
the
2nd
respondent,
he
would
still
have
crossed
the
more
than 50% threshold
required
under
Article
63(3)
of the
1992
Constitution.
This
fact
was established
through
the
cross-examination
of
PW1,
Mr.
Asiedu
Nketiah
on
the
1st
of
February,
2021
by
counsel
for
the
2nd
respondent
as
follows:
"Q.
The
original
figure
is
6,730,143
subtract
from
the
4,693
what do
you
get?
A.
You
get
6,
725,720.
Q.
What
is
that
figure
as
a
percentage
of
13,121,111?
A.51.295%
Q.
So
you
see,
that
even
if
we
were
to
deduct
your
alleged
padded votes from
the
vote
of
the
,2"d
respondent,
he
still
crosses
the
50+ threshold?
A.
I
disagree
because
samples cannot
be
subtracted
from
another population
figure.
"
We
observe
that
PW1,
from
the
above
extract
was
merely
being
evasive,
since
it is
obvious
that
if
you
took
away
the
alleged
padded
votes
of
4,693
from
the
total valid
votes
of
the
2nd
Respondent
as
at
9th
December
2020,
as
shown
above,
the 2nd
Respondent
would
still
have
obtained
more
than
50%
of
the
total
valid
votes cast
satisfying
the
threshold
of
Article
63
(3)
of
the
1992 Constitution.
On
this
issue
we
are
settled
in
our
minds
that
the
allegation
of
vote
padding
though serious
in
an
election
such
as
the
Presidential
election,
was
not
proved
by
credible evidence.
Furthermore,
even
if the
vote
padding
took
place,
same
was
not
material or
substantial
to
change
the
final
results
so
declared
by
the
Chairperson
of
the
1st
respondent.
In
holding
that
the
impact of
the
vote
padding
if
even
proved
could
not
have affected
the
declaration,
we
are
emboldened
by
the
decision
of
Lord
Denning
in the
case
of
Morgan
v
Simpson
(1975)
1
QB
151,
which
was
cited
by
counsel
for the
Petitioner
in
his
closing
address.
We
observe
however,
that
counsel
for Petitioner
only
referred
us
to
only
one
of
the
three
propositions
articulated
by
Lord Denning.
In
that
case
Lord
Denning
summarized
the
duty
of
Courts
in
making
declarations upon
hearing
election
petitions.
He
stated
three
propositions
as
follows:
1.
If
the
election
was
conducted
so
badly
that
it
was
not
substantially
in accordance
with
the
law
as
to
elections,
the
election
is
vitiated,
irrespective of
whether
the
result
was
affected
or
not.
2. If
the
election
was
so
conducted
that it
was
substantially
in
accordance
with the
law
as
to
elections,
it
is
not
vitiated
by
a
breach
of
the
rules
or
a
mistake at
the
polls,
provided
that it
did
not
affect
the
results
of
the
election.
3. But
even
though
the
election
was
conducted
substantially
in
accordance
with the
law
as
to
elections,
nevertheless
if
there
was
a
breach
of
the
rules
or
a mistake
at
the
polls
and
it
did
affect
the
result
then
the
election
is
vitiated.
When
Lord
Denning's
propositions
are
read
as
a
whole
the
combined
effect of
the
propositions
is
that
an
election
would
be
voided
upon
the
occurrence of
infractions
that
actually
affects
the
votes
of
the
citizens
cast at
the
polling stations
and
not the
incidence
of
administrative
errors
and
or
mistakes committed
by
officers
charged
with
the
conduct
of
such
election.
We
find
this
same
sentiment
expressed
by
our
own
eminent
jurist
Adinyira
JSC,
in the
first
Presidential
Election
petition
case
Akufo-
Addo
&
Others
v.
Mahama
& Others
No.4
(2013)
SCGLR(Special
Edition)
73.
At
page
237
to
238,
her
Ladyship had
this
to
say:
"courts
usually
apply
the
election
code
to
protect----
not
to
defeat
the right
to
vote.
Public
policy
favours
salvaging
the
election
and
giving effect
to
the
voter's
intent,
if
possible.
The
right
to
vote
is
at
the
core
of our
democratic
dispensation,
a
principle
I
have
affirmed
in
this
opinion with
reference
to
the
Tehn
Addy
and
Ahumah
Ocansey
line
of cases (supra)"
CONCLUSION
We
conclude
this
judgment
by
emphasizing
that
the
Petitioner
did
not demonstrate
in
any
way
how
the
alleged
errors
and
unilateral
corrections
made by
the
1st
Respondent
affected
the
validity
of
the
declaration
made
by
the Chairperson
of
the
1st
Respondent
on
the
9th
December,
2020,
as
already
stated in
this
judgment.
The
Petitioner
has
not
produced
any
evidence
to
rebut
the presumption
created
by
the
publication
of
C
I
135
for
which
his
action
must
fail. We
have
therefore
no
reason
to
order
for
a
re-run
as
prayed
by
the
Petitioner
as in
relief
(f).
We
accordingly
dismiss
the
Petition
as
having
no
merit.
SGD.)
ANIN
YEBOAH (CHIEF
JUSTICE)
(SGD.)
Y.
APPAU
(JUSTICE
OF
THE
SUPREME
COURT)
(SGD.)
S.
K.
MARFUL-SAU
(JUSTICE
OF
THE
SUPREME
COURT)
(SGD.)
N.
A.
AMEGATCHER
(JUSTICE
OF
THE
SUPREME
COURT)
(SGD.)
PROF.
N.
A.
KOTEY (JUSTICE
OF
THE
SUPREME
COURT)
(SGD.) M.
OWUSU
(MS.)
(JUSTICE
OF
THE
SUPREME
COURT)
(SGD.) G.
TORKORNOO
(MRS.) (JUSTICE
OF
THE
SUPREME
COURT)
COUNSEL
TSATSU
TSIKATA
WITH
HIM
TONY
LITHUR
FOR
THE
PETITIONER.
JUSTIN
AMENUVOR
FOR
1sT
RESPONDENT
WITH
HIM
A.
A.
SOMUAH
ASAMOAH. AKOTO
AMPAW
FOR
2ND
RESPONDENT
WITH
HIM
FRANK
DAVIES,
KWAKU
ASIRIFI
AND
YAW
OPPONG.
|
