Submission and ruling on Tsatsu’s application

Tsikata: My lords, I move in terms of the motion paper and the supporting affidavits. My lords, we filed the request on the 19th of January and, my lords, this is a situation by virtue of rule 5 of CI 16, we believe that this court is essentially adopting CI 47, and, therefore, in respect of CI 47, it is order 21 rule 9. As we indicated in our exhibit inspection 2, we filed a search, which indicates that there has been no response or whatsoever to the request that we made to the 1st Respondent. Now, my lords, there is no question that the 1st Respondent is the person with lawful custody of the documents of which we seek to inspect. And it is also quite clear that these documents are public records in the custody of the 1st Respondent. Your lordship will note that each of the categories of documents that we referred to in Paragraphs 1 to 5 of the request are originals of constituency presidential results, in accordance with the various forms that are required to be exhibited.

What we are asking for are the originals or these documents. In Paragraph 6, what we are asking also has to with the records of the alleged update to the purported declaration. That alleged update is Exhibit ‘B’ attached to the witness statement of petitioner’s witness one. Your lordships will see that the figures in respect of that alleged update, including the figures of total valid votes, are different from the declaration that was made on the 9th December, and which we have provided evidence of an attachment to the witness statement, and that is the video recording that the court saw. And there is, again, no dispute that, for instance, the figure of valid votes in Exhibit ‘B’ is 13,119,460. Whereas, what the 1st Respondent stated, which is attached to the petitioner’s number’s witness statement as Exhibit ‘A’, which stated was the figure 13,434,574. So there’s a conflict between those two figures to start with. But that matter is compounded by the fact that in Exhibit ‘B’ a figure is mentioned as what the Chairperson of 1st Respondent inadvertently used, which is again different from the figure which she actually gives. The figure that is now contained in this purported correction is 13,433,573. So we have 13,434,574 on the 9th December in the declaration as so-called valid votes cast, then we have a purported correction, 13, 119,460, which purports to correct a figure in the declaration and uses yet another figure, 13, 433,573. Now my lords, the point about all these matters is that these figures are supposed to relate to documents in the possession of the 1st Respondent that can justify these numbers. These figures are not supposed to just be plucked out from the thin air, they were supposed to be figures based on the backing documents.

And, your lordships would have noted that in our petition we indicated that if you actually sum up; if you do the arithmetic in respect of the column where votes of attached to individual candidate, if you do that the figure that you will come to is, again, a different figure, that is 13,121,111.

Judge: Mr Tsikata if you sum up in which document?

Tsikata: If you look at our amended petition in paragraph 12.

Judge: You said if you sum up from which table?

Tsikata: That is what was read in the video, Exhibit ‘A’. We basically listened and put down the numbers, and even this 13,121,111 did not appear anywhere.

Judge: If you actually sum up the figures in Exhibit ‘A” you will come to 13,121, 111.

Tsikata: Yes.

Judge: Thank you.

Tsikata: We state that in paragraph 12 of the amended petition, and so that is a 4th figure. Now your lordships will note that in the answer of the 1st Respondent that was filed on the 9th of January, in that answer, the 1st Respondent now actually adopts the figure that we have calculated, and for the first time, the 1st Respondent also states 13,121,111 for the total valid votes cast. So the figure that we have calculated now becomes the basis of their answer. The stone, which the builders rejected, has become the capstone of their answer of the first respondent.

My lords, these are the plain circumstances which necessitate a reference back to original documents which are in the custody of the 1st Respondent. So that there will be a proper validation of what the correct number is. My lords, we simply cannot have a situation in which as described by petitioner’s witness number one. We still, as at today, cannot tell what the correct figures of the basis for the declaration was made publicly; what the correct figures are, we cannot tell. We simply cannot tell. My lord, the only way, alternately, in which the court is going to satisfy itself in our respective submission, is by ascertaining from the 1st Respondent what exactly the 1st Respondent Chairperson, whose is the constitutionally mandated person, is using for her declaration. And, your lordship, also have before you a witness statement of the 1st Respondent, which is sworn to by the Chairperson, Mrs Jean Adukwei Mensa, and that is filed on the 22nd January 2021, and there again, my lords, there is now reference made on oath. I’m sorry it is not yet on oath; I’m crossing a bridge that I have not got to. But the witness statement, which is already before your lordships, has this number 13,121,111, and that witness statement provides no explanation of how in Exhibit ‘B’ a different number to be corrected is given from the number that we all heard in the declaration.

Judge: Is that not in paragraph 11 of the 1st Respondent’s witness statement? Is the explanation not there?

Tsikata: My lords, it is not there. My lords, as indicated in Exhibit ‘B’ in the witness statement of the 1^st Respondent, the number that was given was given as being corrected is 13,433 something. It is not 13,433,573. In the purported correction that was purported to be made, I referred your lordship to; I’d I may go back to it again with your permission – that is an attachment to Johnson Aseidu Nketia’s statement, and that is Exhibit ‘B’. Your lordships will see that it says the Chairperson of the Electoral Commission inadvertently used 13,433,573, and that is different from the figure that I alluded to. And that is different from the figure that your lordship has referred me to. So, my lords, the reality of changing numbers is inescapable in this election petition.

Judge: So, Mr Tsikata, so these numbers are all related to the total votes or the valid votes cast?

Tsikata: That is correct.

And C.I.127 tells us how those numbers are supposed to be arrived at. C.I.127 regulation 44(10) requires an assembling and collation of results from the regions provided by the various regional collation officers, as set up in Form 12. So, in the midst of ever-changing figures, it is our respectful submission that there is a need, not only to refer to the originals of what she herself purported to use so that they can be compared to whatever documentation that is available to us from the ground. My lords, there has also been, in this case, an extensive cross examination in respect of Exhibit ‘C’, which was struck out, but there was an extensive cross examination in respect of that exhibit, and, therefore, my lords, I wish to make reference to that, because the cross examination of counsel for the 1st Respondent purported to show the two different documents for the Eastern Region.

Justine Amenuvor: My lords, with respect, I never cross examined on Exhibit ‘C’. The exhibit my learned friend might be talking about is Exhibit ‘D’, the one that is attached to their letter.

Judge: Very well.

Tsikata: My lords, I do take that correction. It is Exhibit ‘D ‘attached to the letter. There was cross examination on Exhibit ‘C’ by counsel for 2nd Respondent, which I will come to later. My lords, I was starting with Exhibit ‘D and I should not have said Exhibit ‘C’. Now, my lords, with Exhibit ‘D’, counsel cross examined the witness extensively to show or to explain why one document which has a kind blue stamp, why that document is different from the other document, and that’s where he referred to Ayensuano and all that. Now, my lords, without going into all the details of that figures, it is clear that it is acknowledged that there were differences between those two. So what we are saying respectfully, is that in order even to be clear on what was actually used by the 1st Respondent in reaching the numbers that were ultimately totaled; in order to be clear, we will request to inspect the original documents that she had. It is no response to say that we have both documents, which was originally signed by our agents, and another document, which was not signed by our agent in the regional summary form of the EC. So it is no response to say that we have both, because that is precisely why we know which one is the authentic one. And the only way to know the authentic one is if we are allowed to inspect the original ones.

Presumably, Counsel for 1st Respondent, who put to the witness said certain figures from a constituency and all that. We have to have access to all those originals, otherwise we wouldn’t have to put it to the witness, and counsel is only allowed to put to the witness what he has been instructed by his client. Without question, counsel has information which we are not in possession of, simply by virtue of having these two contradictory documents, which are attached to Exhibit ‘D’. And, my lords, it was explicit in the testimony that was provided by the 2nd petitioner’s witness that the agents of the candidate, the petitioner, had issues with some of these collation sheets and began to air them in their decisions to the relevant officials of the EC and were awaiting appropriate responses.

Now, my lords, as I have said, Exhibit ‘C’ was also cross examined upon it extensively with a lot of arithmetic calculations made in respect of Exhibit ‘C’, with different permutations of numbers. And we are saying respectfully that what all that proves is that without knowing the authentic, original documents, on the basis, which the Chairperson of the 1st Respondent undertook her solemn constitutional responsibility, we are all in the dark.

My lords, we are conscious of the fact that in the election petition in 2012/13, an application was made in a similar manner for documents to be produced for inspection, and the ruling of the court, which is found in Supreme Court of Ghana law report in the special edition at page 61 onwards. The ruling of the court states clearly why the lordships, on that occasion, didn’t grant the application. And, I will respectfully refer to a passage in page 71 of the judgement of the ruling read by her Ladyship Sophia Adeyenra. And she said as follows: “In the circumstances, we hold that the petitioners are sufficiently and we’ll informed about the election results, which has enabled to mount this petition on grounds of malpractices in 4,709 polling stations based on the content based on these duplicate documents in their possession.”

In that case, the petitioners mounted the petition on the grounds of 24 categories, as they put it, of malpractice in initially 4,709 polling stations and became 11,000 and more, by virtue of subsequent amendments. And so what the court was just saying is that the petitioners themselves had already put forward in support of their case, documents that they have confidence in; they have put them forward. And, therefore, to ask to inspect documents, when you yourself have said we are putting this forward and this is the basis of our case, that is contradictory.

In this petition, my lords, we have not put forward results or malpractices in 4,709 polling stations. In this petition, we have put forward the words of the declaration of the Chairperson, the Returning Officer, the only constitutional mandated body. The person, I should say – the only constitutional mandated person to exercise that responsibility.

And clearly, the rational, the ratio decidendi of that case cannot relate to what we are dealing with in this petition. And Her Ladyship goes on to say: “The affidavit in support of the application does not dispose any need for the inspection and making photocopies of the originals of the documents.” My lords, nobody can say that in this case we are not disclosing any need for inspection in a situation where we have changing numbers. And in a situation to this day, we are in no place to state a definitive number. In those circumstances in our respective submission that is even in the interest of the 1st respondent, in terms of transparency; in terms of fairness, it is the interest to make available… That is why, frankly, we did not expect that we have to make this application before that request is granted. We honestly thought that this was something that would be resolved, and we will go and have an opportunity to inspect. There are clear provisions in the rules of court within a reasonable time and within reasonable circumstances, and we cannot obviously flout those circumstances. So this is something that could have been resolved in a very straight forward manner by enabling that inspection to take place without having recourse to orders of the court, but we have not even had the courtesy of acknowledgment of our request, and, therefore, we oblige to seek the orders of the court in order that we can achieve what will enable us to have a fair hearing of the petition that we brought to this court.

Now, my lords, if there is nothing to hide, in terms of transparency around the originals, it is difficult to appreciate why an inspection couldn’t have been granted in the course of the last 14 days or so, since we filed. I mean, if there’s nothing to hide, and if the interest of the first respondent is transparency, as it has been indicated, then why would it be so difficult? Why would it be so difficult not to allow access to the originals? We have come relying on our duplicates that they are the basis for our case. We are relying on her own declaration. Her own declaration speaks for itself. So, my lords, in this situation, we require access to the originals and compare to what we have and get to the bottom to these ever-changing numbers.

My lords, the reference that I made to a fair hearing, my lords, it is also anchored; we are saying effectively that this access to these documents required for a fair hearing in this case, because it is not within the province of the 1st Respondent just to pick and choose numbers from different sheets, from the way they sought to do in cross examining on Exhibit ‘D’. It is not within the province of the 1st Respondent to pick and choose and say oooh, this document you have didn’t include Ayensoano. Nothing on the face of the document includes Ayensoano; is there or not. Nothing! And this one we also have, which is supposedly about the same regional results, regional collation, that document has different numbers and we just have to take it from them – that Ayensoano is 40,000 is what has led to the difference.

And article 19(13) of the Constitution makes it clear that this court is required to grant a fair hearing within a reasonable time. May I, with your permission, read the article: read: “…” My lord, as the article indicated, we are asking for a fair hearing of the petition that we have brought, and for that fair hearing we are submitting that the documents that we have sought assess to, are necessary documents in order to understand the case that it is being put against us with all its changes and permutations.

My lords, I may just make a comment finally on the request on six that deals with originals – that is dealing with records to

the alleged update of the said declaration. May lords, you may observe that the update attached to the Exhibit ‘D’ of the petitioner’s first prosecution witness is a press release. That update is not signed by the Chairperson. It is not signed by anybody, and we do know that the constitutional role that is assigned to the Chairperson, both under the Constitution and CI127, that role cannot be delegated either to a media relation officer or to a deputy, or any other person. It cannot simply be delegated. And, therefore, the records relating to that alleged update are things that needed to be inspected, particularly when we have pointed out to your lordships in that update itself, certain figures which are put there which are different from what we all heard from the declaration. So some records are required, and no doubt there must be some basis to be determined for the alleged update. That is the essence in paragraph six, from paragraphs one to five.

It is our respectful submission, therefore, that in the interest of justice, this application be granted. And I will also just conclude with order 1 rule 2 of C.I.47, reading “…”  Indeed, this proceeding, in our view, is very quite unnecessary, because it could have been dealt with expeditiously.

My lords, I omitted one point in their response that I just want to comment on it in one sentence. Those responses begin to raise issues about burden of proof in the case, and so in our respectful submission, issues of burden of proof are irrelevant to the inspection of documents. The burden of proof in this matter is something that, with no doubt, we will have the occasion to address on different aspects, whether the burden of proof is on us to do this or that. Those are matters that at the appropriate time we will deal with.

In their affidavits, essentially, they are lying to some view of burden of proof, which is legally very suspect, but on that basis, they are saying that this application should not be granted. We feel there’s absolutely no basis to that.

Judge: You referred us to order 9 rule 1. Kindly take a look at 21, rule 11, if you may address us on it. I believe the primary objection of this application is to determine the total valid votes cast, that is the primary objective in your application.

Tsikata: My lords, this application is not just the determination of the valid votes cast, because the total valid votes cast go back to whatever was happening at the regional collation – that is the form 12, that is referred to, and that is in evidence, and there was some dispute on that. So it is not just about total valid votes cast, it is also about allocation. Your lordships will see that in the Exhibit ‘D’ attachment that we have, there are differences in the allocations of the votes cast. So it can just not be in respect of total valid votes cast.

Judge: Can you look at Order 21(11)?

Tsikata: So that: reading “…” I don’t believe privilege is an issue here.

Judge: I’m referring to one?

Tsikata: One, we have addressed you on necessity, and we have addressed you by referring, even simply, to the attachment to Exhibit ‘D’, which have been the basis a lot of cross examination here, and the basis for lots of explanations from counsel. That Exhibit ‘D’ itself, in our respectful submission itself, necessity for knowing what is the original on the basis to have one to the other. What is the original figure? That is my submission.

Tsatsu Tsikata: …And, My Lords, with the greatest respect, this is quite an important point, because His Lordship Justice Apau did ask certain questions in relation to PW1 (Petitioner Witness 1), and in our respectful submission, those questions are completely irrelevant to the issues that have to be dealt with, because, the question, whether he has documents or not… (Akoto Ampaw interjects)

Akoto Ampaw: My Lords, if I may be heard on this. My Lords, I think Counsel (Tsikata) should argue the application.

(Bench interjects)

Bench: Let him finish. He was responding to a question from the Bench.

Akoto Ampaw: The question had nothing to do with what Justice Apau said.

Justice Apau: Let me answer myself (a little laughter in court following his statement). Mr Tsikata, please, that is your opinion so keep it to yourself. Whether the questions I asked were irrelevant or not, that is your opinion.

Tsikata: But, my Lords, I need to explain why I am saying they are irrelevant so that I can fully answer the question, because the question relates to the same position that your Lordship took, so I need to be heard on why I say that they are irrelevant, because I did not say that lightly.

The questions are irrelevant because we have brought a petition here on the grounds of a declaration that was made purportedly about elections held on 7th of December. The declaration stated a figure. We all heard it – 14,400 – and all that; we all heard it. That declaration, till this day, is the only declaration that has been made. Johnson Asiedu Nketiah is not the Returning Officer of the election of 7th December. That is all.

Lawyer Amenuvor: My Lords, we are opposed to this application, and my Lords, we rely on all the depositions in the affidavit to the positions.

My Lords, under article 64(1) of the 1992 Constitution, the petitioner has had 21 days from the date of the declaration to file the petition. We have not been told in the court that between the time of the declaration to the time the petition was filed, any such request has been made.

My Lord, secondly, the question is asked; why this application is being made on the 34^th day after the petition has been filed when hearing is well under way?

My Lords, if you peruse exhibit inspection 1, the document filed purports to give the first Respondent three days from the date of service to comply. My Lords, with the greatest of respect, there is no such rule of this court under which this application was made, or even under the High Court rules.

Court: But that’s under mutual discovery.

Lawyer Amenuvor: Yes, but my Lord, even so, it talks about 14 days. Mutual discovery talks about 14 days. My Lords, I say this because under your Rule 5 of the Supreme Court rules, if I may read. “Where provision is not expressly made by these rules regarding the practice and procedure which shall apply to a course of matter before the court, the court shall prescribe the practice and procedures that in the opinion of the court, the Justice of the court, of the course of matter requires.”

And my Lords, there have been several authorities on this point, that it is the court that you make an application to for guidance in this matter.

Court: Mr Amenuvor, you see, he came under mutual discovery, and that is Order 21(1). Then when you look at the proceedings, we have gone beyond that, because there was no response from you, and when you do not allow inspection of document or whatever, then you can resort to an application under 21(9).

Lawyer Amenuvor: My Lords, the second point I wish to make is that the petitioner has failed to prove that the production for inspection by the 1^st Respondent is necessary in these circumstances. My Lord, this is because the witnesses themselves, who came to testify on behalf of the petitioner, admit that they have the documents, and my Lord, the way this process is, is that once the document is filled out or the agents are given carbonised copies, and we did ask them if they have the document, and they said under oath that they have the document. So if they have the document, then on what basis is this application being made?

My Lords, furthermore is our submission that the situation is that the petitioner has failed to provide any evidence in support of his petition, and that is why at the end of the cross examination of the petitioner’s witnesses, this application is brought in, in order to give them the opportunity to get further evidence. I do not believe that it has been the practice of the court that evidence is led in piecemeal. Evidence cannot be led in piecemeal before the High Court, so how much more the Supreme Court. So, my Lord, it is our submission that for these grounds, of course, they bear the burden of proof to provide evidence sufficiently, and having failed to do that, they cannot at this late hour come and make this application for documents which witnesses themselves admit are in their possession. That is our submission my Lords.

Lawyer Ampaw: My Lords, we believe that at the heart of this application is the question of which party bears the burden of persuasion and the burden of producing evidence.

Now, my Lords, the reason I say so is because the petitioner, by the admission of his own witnesses, and by law, has carbonised copies of all the processes from the polling station right up to the regional level, and even to the National Collation Centre. They have all the carbonised copies. Therefore, where the petitioner raises a question about the authenticity of any document, he must first produce what he has and show that what he has is different from what the other party has.

Secondly, if it’s in respect of the declaration, the petitioner has all the documents that will enable him sum up the national results of all the candidates. He has carbonised copies of relevant documents that will enable him sum up the total number valid votes he got, the total number of valid votes the 2^nd Respondent got, and the total number of valid votes the other candidates had.

My Lord, the petitioner, for reasons best known to him, has refused to present this before the court when he bears the burden of proof; he has refused to take any steps to meet that burden. He has refused to produce any document to meet his burden of producing documents. Then he turns round, then under this guise of application to produce documents, he tries to garner the evidence that he will use to prosecute his case. My Lord, this, with all due respect, this is a totally misconceived procedure.

My Lord, let me say again, it is not as if the petitioner is saying that, from the documents I (petitioner) have, the document that the EC is producing is not the right document and, therefore, we want to see the original, because we (petitioner and his team) have the exact carbonised copies of what the EC has, and what he (petitioner) is producing is different from what the EC has. He is not saying that, rather the application confuses authenticity because he (petitioner) is questioning the EC’s carbonised copy as not the original and where the document is authentic, but they are taking issue with the content, it’s a different matter. If the document is authentic, but you are making arguments that you have a problem with the content, it is different from saying that it is not authentic. You can only raise the question of authenticity if you have some other document which is showing that this (EC’s) document cannot be the authentic document, on such grounds, nobody can quarrel with the petitioner. If he says that he has problem with the document, he should produce the carbonised copies which you have to show that the contents of the EC’s copies are wrong. And that is why, my Lord, at the heart of this application is an attempt to shift the burden of proof and the burden of producing evidence onto the respondent, and that is not possible in any court of law.

My Lords, again, we wish to make it very clear that it not the number of times that counsel refers to transparency that will make his case that things are not transparent. He needs to provide the evidence of lack of transparency, and not just the verbal statement about transparency and repeating it over and over again.

Then again, my Lord, the petitioner makes a very serious statement about fair hearing. My understanding of his submission is that he is using the right to a fair hearing to conjure away the burden of prove.

My Lord, with all due respect, I am saying that the application seeks to use the right to fair hearing to conjure away the burden of proof and the burden of persuasion. These are very fundamental issues in a trial process. He cannot shift the burden of proof when he has not led any evidence which compels us to lead evidence in response. He has not produced any evidence much more met the burden of proof that is all the time on him. So, my Lord, if this is the reason for his application, my Lord, it is a misconceived application. My Lord, what makes it worse is that he has not met the basic conditions set out in Order 21 rule 11(1) of C.I 47, which reads: “An order for the production of any document for inspection or to the court shall not be made under any of these rules, unless the court is of the opinion that order is necessary either to dispose fairly of the course of matter, or to save cost.

My Lords, it’s our submission that the counsel has not shown, in any way, the necessity of this application. Furthermore, he has not demonstrated how this will help the fair disposal of the application or save cost. It will not help save cost, because, indeed, if the application is granted, it will increase the cost of litigation. It will not promote a fair disposal of this petition, because the application is misconceived. This is why this application is unmeritorious and should be dismissed as such.

Ruling by Court

The documents under consideration were required under C.I 127 – that is Public Elections Regulation 2020 – to be given to every candidate who participated in the presidential elections through their accredited agents.

Regulation 44 of C.I 127 sets out the different forms to be completed at the various stages of the electoral process, and the copies of the forms given to the accredited agents of each candidate.

The applicant has not demonstrated that he has no copies of the documents in question. In fact, on records, PW1 and PW2 have admitted that the petitioner has copies all the documents. The application for discovery and inspection requires the discretion of the court. The guiding principle is that in all cases in which the court makes an order for discovery, it is a matter of discretion and not as of right. In the other way, where there are issues of facts between the parties, the court will generally make such an order. However, in the instant case, the applicant has not raised any issue that he has no copies of the documents of the subject of this application. In view of the fact that the proceedings so far shows the petitioner has copies of all the documents of the subject of this application, we are of the opinion that no proper case has been made before us to warrant the exercise of our discretion in favour of the applicant.

Order 21 Rule 9 of C.I 47, which is the basis of this application, should not be read in isolation, it should be read in conjunction with Rule 11 of the said Order. It states that “an order for the production of any document for inspection, or to the court, shall not be made under any of these rules, unless the court is of the opinion that the order is necessary, either to dispose fairly the cost of the matter, or to save cost.”

Furthermore, section 166 of the Evidence Act makes it clear that a duplicate of a document is as admissible to the same extent that the original, unless a genuine question is raised as to authenticity of the duplicate. No issue has been raised against the authenticity of the duplicate in possession of the applicant. The discrepancies which learned counsel of the petitioner has alluded to in his submissions, as having occurred in the declaration of 9^th December, 2020, the press release of 10^th December 2020, and the answer in witness statement of the 1^st Respondent, are issues of evidence and do not give cause for discovery of the documents under consideration. From the above reasons, the application is dismissed.

Transcript by Bernice Bessey and Agnes Ansah

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