IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA- A.D. 2021

CORAM: YEBOAH, CJ (PRESIDING)

APPAU, JSC
MARFUL-SAU, JSC
AMEGATCHER, JSC
PROF. KOTEY, JSC
OWUSU (MS.), JSC
TORKORNOO (MRS.), JSC
WRIT NO.
J1/05/2021

4TH MARCH, 2021

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

PRESIDENTIAL ELECTION HELD ON 7TH DECEMBER, 2020

JOHN DRAMANI MAHAMA - PETITIONER

H/NO. 33 CHAIN HOMES
AIRPORT VALLEY DRIVE
ACCRA

AND

1. ELECTORAL COMMISSION - 1ST RESPONDENT

NATIONAL HEADQUARTERS
1
6TH AVENUE
RIDGE-ACCRA

2. NANA ADDO DANKWA AKUFO-ADDO - 2ND RESPONDENT

HOUSE NO. 02 ONYAA CRESCENT
NIMA-ACCRA

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 2 nd 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 2 nd 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 1 st

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 9 th December 2020 in respect of the
Presidential Election that was held on 7th December, 2020;

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 (b) 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 Election held on 7 th
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 9 th

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 7 th
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 7 th December 2020
and gazetted on 10th December, 2020;
(e) An order of injunction restraining the 2 nd Respondent from holding himself
out as President-elect;
(f) An order of mandatory injunction directing the 1 st 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 1 st Respondent. However, the

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Petition is not against her personally but against the 1 st 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.I. 16 (as amended by C.I. 74 and C.I. 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 Court within twenty-one days after the
declaration of the result of election in respect of which the
petition is presented”.

Rule 68A. “Despite 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 7 th

December, 2020 Presidential elections but only the declaration made on the 9 th
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 2 nd 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

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 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.

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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 9 th 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-ELECT INSTRUMENT, 2020” [C.I. 135]
was published under the hand of the Chairperson of the 1 st respondent to that
effect and published in the Gazette on 10 th 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

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 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 1 st 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

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 on them by law and persons aggrieved by the exercise of such acts
and decisions shall have the right to seek redress before 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 1 st Respondent. Petitioner’s case simply is
that the figures or data declared by the Chairperson of the 1 st 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 2 nd 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. CI 135) and a further order to organize a fresh re-run between

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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.I. 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

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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 2 nd 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 1 st 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 9 th December, 2020. Again the 1 st
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 1 st 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,

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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 1 st Respondent to
proceed to conduct a second election between the first two candidates; i.e. 2 nd
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 1 st Respondent does not give the 2 nd
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 1 st Respondent by ‘’her own Bible’’, by which he
meant they were judging her by her own data from which the 2 nd respondent
was declared President-Elect.

THE 1ST RESPONDENT’S CASE IN ANSWER

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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 1st
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. 1 st
Respondent contended further that even with the error, the fact that the 2 nd
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 9 th 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 1 st Respondent in its
press release of 10th December, 2020, provided a proper reckoning of the

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percentage of votes obtained by the 2 nd Respondent using the valid votes cast
rather than total votes cast and shows that the 2 nd 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 1 st
Respondent on 9th December, 2020, 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

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Constitution, 1992. He consequently filed a preliminary objection, as the 1 st
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 1 st Respondent dated 9th
December, 2020 of the results of the Presidential election

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 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.I.16 as amended by C.I.74 & C.I.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.I.47 as amended by C.I.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 1 st
Respondent also filed a witness statement of its Chairperson whilst the 2 nd
Respondent filed a witness statement through his attorney.

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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-
existence”.

As was held by this Court per Adinyira, JSC in Ackah v Pergah

Transport Ltd [2010] SCGLR 728 at p. 736: “It is a basic principle

16
of the law on evidence that a party who bears the burden of proof
is to produce the 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)
SCGLR 721 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 SCGLR 1551.
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 Botwe Lands: Adjetey
Agbosu v Kotei (2003-2004) SCGLR 420 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.’’

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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 SC;

2. ODINGA v UHURU KENYATTA [2013] PETITION (NO. 5);

3. OPITZ v WRZESNEWSKJI [2012] SCC 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 & Obetsebi Lamptey v. Mahama & Electoral
Commission (No. 4) (2013) SCGLR (Special Edition) 73.

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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 & Ors. v Kotey &
Ors (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.1. He was,

19
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 1 st
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 1 st 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 1 st 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 1 st
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 1 st Respondent. Having

20
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.

21
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 20 th September 2017,
where NJOKI S. NDUNGU, SCJ 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 Lawal Garba, JCA
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

22
 on the instruction of their party, the 1 st 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.1

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 1 st 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 1 st 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 1 st 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 1 st 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

23
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 19th June 2019 (unreported) and
Mayor Agbleze & 2 Others v. Attorney –General Suit No. J1/28/2018
dated 28th 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 1 st
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) SCGLR 1 and

Edusei v. Attorney- General No.2 (1997-98) SCGLR 753,

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

24
 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 1 st 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 1 st 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.I. 127. If it is the
case of anybody that the 1 st 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

25
Civil Procedure Rules, C.I.47 as amended by C.I.87, which the Court adopted to
regulate the trial in addition to the rules provided under C.I.16 as amended by
C.I.74 and C.I.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 1 st 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.

26
 Mohammed Lawal Garba, JCA of the Court of Appeal of Nigeria in the
Presidential Election Petition between ATIKU ABUBAKAR & ANOTHER v
INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & 2
Others, PETITION NO. CA/PEPC/002/2019, dated 11 th 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 [2018] 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

27
 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 witnesess,
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 PETITIONER AND THE RESPONDENTS.

The Respondents filed their written submissions as directed by this Court on 17 th

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 17 th
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 23 rd 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.

EVALUATION OF THE EVIDENCE ON RECORD AND THE DECISION OF

THE COURT

This Court set down five (5) issues for determination. These are:

28
 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 1 st 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,

29
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 facts
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 1 st Respondent did not at all
reflect the actual results of the elections; that the 1 st 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

30
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

(2010) SCGLR 463, 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.

31
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 1 st
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 2 nd 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 1 st 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

preliminary 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 CI 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 1 st Respondent. On this

32
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

33
VALIDITY OF THE DECLARATION OF THE 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 50% 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 1 st
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 1 st
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 1 st

respondent and the Returning Officer for the Presidential

34
 Election, further said that 2nd 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
2nd respondent would amount to 50% and not the 51.595%
erroneously declared.

9.Mrs Jean Adukwei Mensa, Chairperson of 1 st 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 1 st
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 2 nd 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 1 st Respondent having

detected the error in announcing the figure of 13,434,574 as the total valid votes

35
cast corrected the error and issued a Press Release on the 10 th 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 Adukwei Mensa on 9th 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 12 15.

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 nd
Respondent obtained is 6,730,413?

36
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 1 st Respondent’s

declaration on 9th December, 2 ndRespondent 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

37
 valid votes, these are the percentages you get for the petitioner and
the 2nd 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 nd 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 2nd Respondent, 2nd 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
2nd 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 1 st
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 1 st

February, 2021 by counsel for 2nd Respondent admitted that it will be wrong for
38
anybody to use the total votes cast to measure the threshold. PW1 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 PW1 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 2 nd 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 50% threshold required for a candidate to be elected
the President, under Clause 3 of Article 63 of the 1992 Constitution which
provides thus:

39
 “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 (50%) 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 1 st 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 1 st
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:-

40
 (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 1 st

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 1 st
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

41
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 1 st
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 2 nd 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 2 nd 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 PW1 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+52,034). The 2nd respondent also obtained 46,379 bringing his
National total valid votes obtained to 6,776,792 (6,730,413 + 46,379)

42
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 2 nd 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 2 nd Respondent would
remain 6,730,413, meaning that the 2 nd Respondent obtained zero votes in
Techiman South Constituency. The 2nd Respondent’s votes expressed as a
percentage of the total valid votes cast (13,249,129) will still give 2 nd Respondent
50.7989% of the valid votes cast thus meeting the threshold required of Article
63(3) of the 1992 Constitution.

43
The above analysis which is based on the scenario that the 2 nd 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 2 nd 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 1 st Respondent
failed to answer the Notice to Admit Facts served on it the petitioner tendered
Exhibit ‘B’ the Press Release of the 1st respondent dated 10th December 2020.

The pleadings, Exhibit ‘B’ 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 1 st
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,PW1 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.

44
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 9 th of December, 2020, the 1st
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 50% 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 9 th
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 1 st 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

45
attached and marked as exhibit ‘D’ and available on the 1 st respondent website;
www.ec.gov.gh as at 11:45 hours GMT on the 29th December 2020.

29. In this purported corrective Press Release, 1 st 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 1 st 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:

‘’ 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

46
this court per Benin, JSC in the case of Sarpong (decd) (substituted by)
Koduah v Jantuah (2017-20) 1SCGLR 736 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
1992 Constitution 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 elected.’’

The presumption above is reverberant of the statutory presumption that is

provided for in section 37 of the Evidence Act 1975 (NRCD 323), which is
reproduced below as follows;

‘’ 37(1) It is presumed that official duty has been regularly

performed.’’

47
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 of this prima facie
evidence that the 2nd Respondent was validly elected in accordance with the

48
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 1 st 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 1 st 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 9 th
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 9 th

December 2020, the Chairperson of the 1 st 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

49
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 1 st 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 1 st 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 1 st 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

50
court to conduct fresh elections between the 2 nd 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 1 st respondent used to collate 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 2 nd respondent on the 1st of February

2021, this is what PW1 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.’’

51
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 1 st 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 1 st 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 1 st 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 as the
President elect on the account of the errors described in the declaration in his

52
relief (e), and for the court to order a re-run between the petitioner and the 2 nd
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

53
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, PW1 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 1 st 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 2 nd 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

54
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 2 nd 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 PW1 in Exhibit ‘F’, this court will then
have to ascertain its impact on the final results declared by the 1 st 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 1 st
of February, 2021 by counsel for the 2nd respondent as follows:

55
 “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 2nd 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

56
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
57
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)

58
 (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.

59