The 2nd Respondent in the ongoing 2020 election petition, President Nana Addo Dankwa Akufo-Addo has ,through his counsel, Akoto-Ampaw, prayed and been granted permission by the Supreme Court to play an audio, which, according to him, would prove that Mr Johnson Asiedu Nketia, General Secretary of the National Democratic Congress (NDC) and a witness in the case, cannot be credible.
The details of the said audio are not yet known, however the lead counsel for the second respondent, during cross-examination last week Friday, asked Mr Nketia, popularly known as General Mosquito, some specific questions about content on a pen drive attached to his client’s answers to the petition.
However, Mr Nketia, while in the witness box, said he had no knowledge about the said content on the drive, since he had not seen it.
Mr Akoto Ampaw had sought to find out whether Mr Nketia, the petitioner (a former president and the candidate), and some top hierarchy members of the party had organised a press conference to announce their candidate as the winner of the 2020 presidential election, per their collated figures.
Mr Asiedu Nketiah, in response, admitted that the party had organised a number of press conferences in relation to the election, but that they were not in court because of their collated figure, but what the Chairperson for the 1st Respondent, Electoral Commission, declared on December 9, 2020, that was subsequently changed.
Nevertheless, Mr Akoto Ampaw insisted that during those press conferences, certain pronouncements were made regarding the victor of the presidential election, which Mr Mahama, the witness, including other top-notch of NDC members, spoke on the issue. After back and forth arguments, the court ordered that the content of the said drive be played today. Meanwhile, the following is what transpired in court last Friday.
Tsikata: Our first witness is ready. I don’t know whether your lordship would want us to make a formal application, based on our indication in the witness statement he has filed. I want to confirm the status of admission of facts. I just want to be clear so that we are guided appropriately.
Judges: We want to take the witness first.
Tsikata: Very well.
Witness swearing an oath: I, Johnson Asiedu Nketia, do, in the name of God Mighty, swear that the evidence I shall give in this case, shall be the truth, the whole truth, and nothing but the truth. So help me God.
Tsikata: My lords, I believe the procedure since it is not expressly provided in C.I. 99, I believe the process as provided in C.I. 47, I just needed to be clear maybe.
Judges: He will just identify the witness statement and we will adopt it as his evidence in chief, and cross examination will follow.
Akoto Ampaw: My lords, just so that we are not caught up by time. We have objections to certain parts of the witness statement and would like to apply to the court to have those parts struck out, as they are not relevant nor based on the pleadings of the petitioner or otherwise scandalous, prejudiced and unfair.
Judge: Mr Akoto Ampaw, the witness is yet to identify the witness statement, so just wait.
Akoto Ampaw: I am just serving the court with notice, because it is sometimes assumed that when you keep quiet and you pretend sitting, then you are covered.
Judge: Mr Akoto Ampaw, you don’t tender evidence statement. So when he enters the box after he has been sworn in, then it becomes evidence. Then he can rely on it. Then if you’re raising an objection, you can raise it. As it is now, it is not evidence before us.
Tsatsu: Please give your full name to the court?
A: I am Johnson Asiedu Nketia.
Q. And you have filed a witness statement on behalf of the petitioner?
A. Yes my lord.
Q. Can you identify what the Deputy Registrar has made available to you and confirm that it is the witness statement that you have filed?
A. Yes, my lord, this is the witness statement that I have filed.
Tsatsu: My lord, we wish to tender that witness statement.
Ampaw: My lords, as I have said, we are objecting to certain paragraphs in the witness statement of Mr Johnson Asiedu Nketia. On the grounds that:
1. They’re not based on the pleadings
2. They tend to unduly prejudice some of the part of the suit
3. They’re scandalous
Accordingly, we will pray that those paragraphs or parts of those paragraphs be strike out as such.
CJ: Mr Ampaw, if I heard you clearly, the grounds of the objection; the first was it was not based on the pleadings, second, unduly prejudicial, and third, scandalous.
Ampaw: My lords, I believe that it is well established that…
Justice G. Torkorno: Could you identify the paragraphs first?
Ampaw: Very well. My lords, I’m referring to paragraph 21.
Gertrude: Mr Akoto Ampaw, you have set out three grounds, which of those three grounds is applicable to paragraph 21? What I’m asking you to do is to tell us your ground for objection within the three, before you starts your argument, so that we can follow you.
Ampaw: My lady, paragraph 21 is not pleaded. There is nothing in the pleadings to that effect. This evidence they are seeking to lead is not borne out of their pleadings. (Judge interjects: it is not based on…). Okay, it is not based in their pleadings.
Justice Nene: Do you need the reference to the website in that paragraph?
Ampaw: He said moving and changing and subsequently deleted. These are material facts if we sought to rely on it, they should have pleaded it. My lords, we also wish to take objection to paragraphs 6&7 as completely out of place in the evidence in chief.
Gertrude: Counsel, what does that mean?
Ampaw: It is not admissible my lords, because it was not part of their pleadings. Their lawyer may raise that matter before the court in address, but this cannot be part of their evidence. My lords, we also take objection to that portion of paragraph 25 which starts on page 6 of the WS thus: “1st Respondent, in response of the declaration of the presidential…the determination…in the part of Mrs Jean Adukwe Mensa for the presidential election and certain official of 1st respondent to have 2nd installed as President of Ghana by hook or crook.
“My lords, we think this is highly prejudicial and scandalous. There’s no pleading that can support this type of scandalous and prejudice of evidence, and we pray that it’s struck out on those grounds.
CJ: So Mr Akoto Ampaw, we are clear, is it the sentence starting from page 5?
Ampaw: My lords, my next objection relates to paragraph 28. From the sentence that reads “the Chairperson…” My lords, we pray that this part of paragraph be expunged as scandalous, prejudicial and not based on the pleadings. These are very serious material allegations of facts and they were not pleaded. My lord, the next part we take objection to relates to paragraph 28, which reads: “The secrecy and the lack of transparency in the figures thrown up by one or more officials of the 1st Respondent…” (J: your objection starts from the secrecy).
Ampaw: It starts from shows. My lords, we are saying this portion of paragraph 28 is extremely prejudicial, no facts had been pleaded to that effect, and ought to be struck out accordingly. My lords, paragraph 30 of the WS strangely seeks to suggest that 1st Respondent, because of his bias in favour of 2nd respondent, so…
Gertrude: Can you indicate the portion you are objecting to?
Ampaw: The whole of paragraph 30. My lords, it seeks to suggest that the new regulations were organised by the 1st Respondent with the object of ensuring that the process of collation and aggregation of votes were introduced without any good reason. My lord, he is talking about a piece of legislation. My lords, the witness may not speak to the legal validity.
Gertrude: Mr Akoto Ampaw is it your objection that it is not based on pleading, or it is unduly prejudiced or scandalous?
Ampaw: It is not based on pleadings, and furthermore, it is unduly scandalous. And, my lords, our next objection relates to paragraph 32. My lords, this was not pleaded by the petitioner. And my lords, it relates to 275 summary sheets results. My lords, nowhere in the petition has there been any reference to any 275 summary sheets, and the petitioner had all the opportunity to do so if he intended to rely on this evidence in the trial. He failed to do so, and he is seeking through his witness statement to improperly introduce this through the backdoor. We pray, therefore, it should be struck out. My lords, indeed, if my lords take a look at the petitioner’s amended petition, even exhibits were allowed to the petition and so they had every opportunity, even at the time of filing their petition, to follow that tradition, but they didn’t, but now when they are asked to file their witness statement, they introduce this huge piece of evidence that they haven’t pleaded. We ask that it’s struck out based on the pleadings.
And, consequently paragraph 33 should also, with similar fashion, be struck out. My lords, as we indicated, it is well established that a party’s pleadings are fundamental in determining the case he or she intends to make. A party’s pleadings also notify the other side of the case that he will meet in court. My lords, the significance of pleadings have been set out very clearly in the case of Hammond and Odoi, 1982/83, II Ghana Law Report: 1215@…1236. My lord, I know that this statement of the law is very well known to your lordships, so I will not detain you with reading it. My lords, I wish further to refer your lordship to the case of Adei Jumo versus Adegondey and another, reported in 1965, Ghana Law Report 499, which holds that, my lord, this is the Supreme Court reading: “Although evidence is inadmissible to prove material facts which as not been pleaded, yet when such evidence is …at a trial that objection from counsel, trial judge is bound to take it into consideration.” My lords, we are making this objection so as not to fall into that trap. And, my lords, we wish, in addition, to refer to the evidence decree (Evidence Act), Section 51, my lords, which reads as follows: “for the purposes of this decree, relevant evidence, including evidence relevant to the credibility of a witness or hearsay which makes the existence or non-existent of any fact that is of any consequence to the determination of the action more or less probable than it will be without it.” And sub two reads: “all relevant evidence is admissible except otherwise provided by any enactment,” and sub 3: “no evidence is admissible except relevant evidence…”
Nene: Mr Akoto Ampaw, I’m not clear what lessons you want us to draw.
Ampaw: My lords, I will shortly demonstrate it if I’m allowed. Section 52(b) states: “the court, in its discretion, may exclude relevant evidence if the probative value of the evidence is substantially outweighed by the writ that the admission of evidence will create …danger or confusing the issues.” My lords, the relevance of these provisions of Evidence Act is that they confirm the position that any evidence that would be led, must be based on the pleadings related to an issue in dispute, and that pleadings, evidence that springs from nowhere, surprises the other party, and where they do cause or provide danger, cause of substantial or unfair prejudice maybe disallowed by the court.
And that is why we believe it is relevant. My lords, it is for these reasons… My lords, with all due respect, my attention has been drawn to paragraph 37, where the witness states: “this conduct of certain officials of the 1st Respondent in padding votes of the 2nd respondent is in fact indicative of a well …” My lords, this paragraph is extremely scandalous, and what makes it worse is that apart from the 4,000 so-called padding that they alleged, they have not provided any further evidence, made any further pleadings, sorry, indicating that there’s a well hatched sustained pattern of manufacturing numbers and relating to the votes. There’s nothing in their petition to that effect. My lords, I think it is significant that while the petitioner has been making these scandalous allegations, he has not provided one shred of evidence of its own tabulation of votes; nothing in the petition, not even in the witness statement.
Judge: So Mr Akoto Ampaw, you take advantage of that, why are you worried?
Ampaw: My lords, I am saying that to show how totally unacceptable paragraph 30 is.
CJ: Mr. Akoto Ampaw, let me chip in, pleading is different from evidence. Pleadings can be struck out on the basis that is scandalous, but this is evidence.
Ampaw: And, my lord, if it cannot be struck out, it shouldn’t…
CJ: If your pleading is scandalous, it is a basis for striking out, but the evidence is quite different from the pleadings, except that the evidence takes it from the pleadings.
Ampaw: My lord, our case is that these pieces of evidence are not based on the pleadings, and they should not be admissible for being scandalous. My Lords, we pray accordingly.
Judge: What is wrong with paragraph 6&7, these are facts.
Ampaw: My lords, our view is that those two paragraphs are not matters for his evidence in chief.
Judge: Assuming we are doing oral trial and the witness is in the box, can’t counsel ask him whether in the course of pre-trial he filed notice to admit? Can’t counsel ask him if he files interrogatories?
Ampaw: My lord, in the first place, we want to make the point a witness is a witness, he is not a representative of the petitioner. He is a witness my lord, and if your lordships look at the witness statement, he doesn’t indicate he has the power of attorney and he speaking on behalf of the petitioner. He is a simple witness of the petitioner.
Judge: When you led him, he said he is a witness of the petitioner. Mr Akoto Ampaw, what is your case about paragraph 32, because my understanding of what they are here to do is dealing with the facts of the elections, and when you look at his evidence, paragraph 33 and 34, the witness just stated… how would that affect your case?
You see, we are not dealing with a High Court case trial. We are not in the High Court; we are at the Supreme Court exercising a special jurisdiction over the validity of election of a candidate. You have to limit everything in your submissions in your cross examination to the validity of the candidate, and not a general trial in the High Court. So you are complaining about paragraph 32 and 33, how would that affect your case; the validity of the candidate? Has the witness made any assertion that because of that votes and what not…? So you look at it if there’s anything, let the trial proceed, otherwise we will be going through this banter and we will spend the whole time raising objection this and that. So let’s focus on why we are here.
Ampaw: My lords, that is precisely what I’m trying to do. My lord, my point is that the petitioner, in his petition, has never said anything about summary sheets. The petitioner, in our view, has not challenged the validity of the election. He has simply picked in some errors in the announcement in the tabulation of the results.
Judge: These two paragraphs, 32 and 33, the witness is also not saying anything about the validity of the election, why not keep quiet over it? That is what I’ve been telling my students in advocacy lectures.
Ampaw: We will not keep quiet over it, could be prejudicial. Because it may cast an unnecessary cloud over the elections it’s not pleaded, and I believe that they cannot lead evidence that is contrary to their pleadings.
Judge: Thank you.
CJ: I wanted to know whether Mr Amenuvor has something to say about the witness statement. Yes, Justine.
Amenuvor: Yes my lord, I have nothing more to add to what Mr Akoto Ampaw had said. I associate myself with his submissions. Thank you.
Tsatsu: My lords, I believe we have to deal with a very practical issue before we get into the responses. Quite a lot of objections have been raised, more than 10. If it were a trial which oral testimony is being given in evidence in chief, there will be a series of objections at different points, and one can take it up. And the practical discovery that I’m talking about, as he was raising the objections, we were busy trying to deal with it. I’m probably not sure that I have listed all the objections.
Gertrude: Mr Tsikata, we can help you. We captured them well.
Tsikata: Very well. What I’m going to say, my lords, is that as we proceed with the responses we may need to come back to your lordships for the statement that you have recorded in respect of the objections, so that the answers would be appropriate in terms of what your records… that is what I meant by practical solution in ensuring that we are addressing all objections, but we are ready to respond to each of the objections and guided by your record.
CJ: From my records, the first one was in paragraph 21, then we went back to 6&7, then he went to paragraph 25, a portion not the whole, the latter part of paragraph 25. Then he went to paragraph 26; then he went to paragraphs – 28, 30, 32, 33 and 37.
Tsikata: I have the paragraphs, but the particular grounds that he gave as I go on… My lords, the 1st paragraph; I start off with a fairly elementary statement of the law – that pleadings are not meant to be evidence. And, my lords, rule 7 of order 11 makes it clear that every pleading shall contain a statement in summary form of the material facts on which the party pleading relies for a claim or defence, but not the evidence by which those facts are to be told. And the statement shall be as brief as the nature of the case admits.
“My lords, that is a fairly elementary and well known rule. And if we take the various objections, paragraph 21, if I may first refer to paragraph 20, reading: “… We were pointing out that as at 11:00am before this document was filed, that document was available. Paragraph 21 is making reference to 20 – that following their press release, the results being published on the 1st Respondent’s website became a moving target… In respect of what happened to the numbers that were alluded to in paragraph 20.
Becoming a moving target subsequently deleted the changing figure from the website that is material evidence that undermines the figures that were in that press release, because there were figures in that press release; unsigned press release. And, subsequently, those were, themselves, being changed. I cannot see how these are immaterial. My lords, particularly in a situation where the witness statement of the 1st Respondent, that witness statement itself has different numbers from the numbers in the press release, and the number in the declaration. My lords, with the greatest respect, I don’t know how evidence about changing figures is not material in this proceedings.
Judge: Mr Tsikata, that is not the point. He is saying that this paragraph 21 has not been pleaded. It doesn’t take its source from the pleadings. You will, perhaps, look at you paragraphs 28 and 29 of your petition. You may be able to respond to it. The ground is that it has not been pleaded.
Tsikata: Indeed, in our paragraphs, 28, 29 and 30 of the pleadings. We say “…that is pleaded
Paragraph 6 and 7, my lords, your lordship will recall that in following your orders in terms of filing of the witness statement, we actually drew your attention to this issue of the request to admit facts. Issues that would be part of the pre-trial, therefore, will affect the way we prepare our witness statement for the trial. My lords, paragraph 6 and 7 is precisely to indicate to your lordships the parameters within which his evidence are being played.
CJ: We are worried, because Mr Aseidu Nketia is not the petitioner. He is not a party strictly speaking. He is just a witness as you rightly pointed out. Let’s look at it.
Tsikata: My lords, he is a witness of the petitioner; he attests to matters that are within his personal knowledge. Those matters include processes that he is aware of. I mean those processes are matters of public records, because literally…
CJ: Sir, we don’t want a situation where under cross examination a question is thrown at him and he will not know anything about notice to admit. A situation can arise because he is unknown.
Tsikata: My lords, I’m sure that he will be able to take care of himself.
Judge: We just want to streamline how things are done.
Tsikata: My lords, there’s no difference in this particular paragraph; it is not as if a lawyer is filing those processes. The witness of the petitioner is aware, as anybody else, of those processes and can speak to those processes because he is a witness of the petitioner. As a witness of the petitioner, he familiarises himself with processes that are filed. And, in fact, more importantly, as a witness, the point of those paragraphs are very clear – he is indicating to the honourable court that I’m aware of this, and that is guiding what I have to put in my witness statement. And, in fact, before he went into the witness box, I did draw your lordships attention respectively to the fact that we wanted guidance, whether we needed leave, subsequently after those issues are resolved, and your lordship said he should go into the witness box. My lord, I have no doubts that the witness is able to address this issues, in terms of the knowledge of the facts.
In respect of paragraph 25, it can only be read in conjunction with prior paragraph. Reading 24 “…” and 25, reading “…My lords, in the pleadings, in paragraph 33, my lords, if I may even start from 19, because 1st respondent and it’s Chairperson are required in the conduct of the responsibility, in respect of the election, to comply with the constitution. Paragraph 19, reading “…”
Justice Gertrude: Mr Tsikata could you hurry up to where it’s your pleading that she intended to install by hook or crook, and where this evidence takes its root from.
Tsikata: In paragraph 21, we say she was required to fairly, reasonably, candidly, and not habitually or capriciously. And then we go on in paragraph 24 to point out that she was required not to be biased, either by the reason of prejudice or personal desire or dislike, and also required to exercise discretional powers in accordance with the due processes of the law. We are pleading that these were requirements placed on her, and evidence to show that she did not comply with those requirements. It’s certainly available on the basis of those pleadings, and, as I indicated in relation to…
Judge: It then goes to draw the conclusion or conjuncture that she was determined to declare the 2nd respondent as president by hook or crook.
Tsikata: My lords, if they want further and better particulars, of course they are entitled, but it is not a conjuncture. And we are saying that these are matters that are demonstrated in various pieces of evidence, especially relating to ever-changing numbers on the website. In fact, most of these have not been denied – that there were ever changing figures. The figures in the answer are different from every other figure… We are saying this is evidence of predetermined agenda. That is the implication of the ever-changing figures that were supplied right up to the point of answer. That is, my lords, circumstantial evidence is obviously permissible in proving facts.
Gertrude: Hold on sir, so your response is that this allegation of hook or crook is actually intended to lead us to a conclusion that is made out of inference?
Tsikata: It is made out of a circumstantial evidence – compelling circumstantial evidence.
Judge: Mr Tsikata, is it an inference that you’re making. You know inference is alien in evidence. It can be an address, but not evidence.
Tsikata: My lords, I said we are giving circumstantial evidence on the basis of which conclusions…
Judge: What you’re describing as circumstantial evidence is an inference. You are making an inference, and evidence we don’t do inference, you can address on it.
Tsikata: My lord, these are not inferences, these are predetermined agenda, and we are saying that predetermined agenda is evidence from the ever-changing circumstances and the refusal to act in accordance with the responsibilities to be fair and candid. We say in paragraph 22 that she refused to entertain legitimate concerns placed before her regarding errors in the data she was proceeding to make declaration on. We are saying in paragraph 23, prior to making her purported declaration, 1st Respondent had been notified by agents of petitioner of certain material errors in the figures collated, and then refused to accept a letter written by NDC raising some of these concerns.
My lords, if evidence cannot be given in relation to all these matters and how they lead to inevitable conclusion determined agenda, then we respectfully; I don’t know what else we should do in terms of providing evidence. We go on in paragraph 30, reading: “…my lords, one should respectfully take cognizance of the various elements of our paragraphs in the pleadings. The fact that there is no explanation; there’s total lack of transparency, and these are all things that have been pleaded; and if evidence is being led in terms of predetermined agenda and the determination by hook or crook to arrive at the determination of the result, I cannot see how that evidence can be regarded as objectionable in anyway. They can cross examine on that evidence. They can seek to discredit him – that he has no basis and whatever, but we can’t say that evidence is not admissible.
Paragraph 26, reading: “…now my lords, we have again pleaded with article 2(9(6b) in their answer, in paragraph 40, reading: “… There’s a denial of our allegation. The answer goes on in paragraph 41 to talk about enhanced transparency… My lords, clearly, the answer is the first respondent shows the recognition of the issue of her bias, and she is asserting in paragraph 40, respectfully, that paragraph speaks specifically about the 1st respondent; it does not speak specially about her. We should take the words as they are. The 1st respondent says: “… election was conducted fairly and without any bias.” We claim there is an issue before this court whether there’s bias; whether she was in favour of anyone and that is the issue.
Judge: Mr Tsikata where in your pleadings did you plead that there’s bias because the 1st respondent in a way is related to the wife of the 2nd respondent. Where?
Tsikata: My lords, we plead the two lines 6(b).
CJ: By the rule of pleadings, we don’t plead law. What the law says is a constitutional provision.
Tsikata: My lords, we plead law in the context where certain facts related to the operation of that law are being contested. Because we have to state that the constitution has these requirements in order to point out that requirement.
CJ: But they went further, as you rightly pointed out, that in paragraph 40 and pleaded in answer that they complied with the law, and they were not biased; and they followed the due process as required by the law. But if you go further… We are concerned with the last paragraph of 26. We are not comfortable with that, and that is their problem. The paragraph, starting from the “chairperson, Mrs Jean Adukwe Mensa allowed herself to be biased in her prejudice in favour of the 2nd respondent who appointed her in August 2018. And whose wife and Mrs Jean Adukwe Mensa have close familial relationship. Mrs Mensa at all material time in the conduct of her responsibilities was biased in favour of the 2nd Respondent.” They are saying that this has not been pleaded. This evidence is not based on the pleadings.
Tsikata: We are saying that this is contained in the witness statement is evidence on the pleadings of non-compliance with Article 2(9(6b)), because it is part of our case.
Judge: You must plead before. We have not read anything like this from your pleadings.
Gertrude: Mr Tsikata, don’t you think the close familial relationship should be a material factor, based on order 11 rule 7, you should include in your pleadings?
Tsikata: I’m not of the view that that by itself is a material factor that should be included. My lord, let me be clear, bias could be related to a number of different factors. A close familial relationship is a potential element. In spite of the close familial relationship, there is action taken to follow due process, transparency, then the close familiar relationship will not affect the conduct of the proceedings. It is really a matter of evidence, whether in the content in the circumstances that we are dealing with here; whether we have a situation where that familial relationship has actually affected the conduct of her responsibility.
Judge: Mr Tsikata, how does she respond to this? This was not in your pleadings. Are you not taking her by surprise?
Tsikata: We don’t believe this stated is a surprise. These are facts that are very well known to her.
Judge: We sitting here, we don’t know until we read this.
Tsikata: We are saying in respect of paragraph 26; we are saying that the denial is contained in paragraph 40, and that denial indicates that the petitioner is not taking the 1st respondent by surprise in respect of allegation of bias that is in the witness statement.
My lords, in paragraph 28, I understand that the objection is to a portion of that paragraph, and if your lordship could clarify which portion of the paragraph.
CJ: It starts from the secrecy of the middle of the paragraph.
Tsikata: Reading “…My lords, I have referred to our pleadings in respect of transparency. And I have also referred to our pleadings to these changing figures, and if I may go over again, we started from Paragraph 8 of the amended petition, reading “…And then in paragraph 12, reading “…” So we have already intimated. Then we proceed to make reference to the fact that this in paragraph 22, reading: “…” And we also further indicate the lack of transparency in the purported corrected press release. And this we do in paragraph 30, reading: “…”
There is a direct reference to lack of transparency in that paragraph. And we go further in paragraph 31 to say that reading: “…” So my lords, in paragraph 33, reading “…” We indicate what transparency requires. We didn’t just indicate transparency. We go to paragraph 34, reading “…” So we have pleaded everything that we needed as the foundation will point out that what was done was done secretly, without any reference to these candidates, but completely by themselves, and in accordance with the legal participation of agents of the candidates.
All these paragraphs I have referred to are specific in reference to lack of transparency; lack of consultation with anybody, and my lords, I cannot see how the witness indication that the secrecy and lack of transparency regarding figures thrown out by one or more officials of first respondent seeking to justify after the event, Mrs Jean Adukwei Mensa’s 8th December purported declaration undermines the whole attempt that corrections were indisputably error-ridden and show that the figures were simply being cooked to achieve a predetermined outcome, which has nothing to do with actual votes cast for the presidential election for the various candidates.
So, my lord, the point we are making is that there have been a sufficient basis laid in the pleadings for this should be evidence to show that the figures were just being cooked. Because the figures are coming from nowhere, without reference to anything that is transparent and communicated to anybody. My lords, with the greatest respect, I find it very difficult to see how any objective observer of the ever-changing figures can fail to see that we have not justified in talking about figures being cooked. My lord, figures being cooked is simply an indication that figures are just being thrown out unrelated to valid votes being cast, counted and collated of how it should be. So my lords, respectfully, we submit that there’s a basis in our pleadings – that there’s a lack of transparency; lack of due process.
In respect of Paragraph 30, my lord, this again is not the pleading of the law at all. It is not the validity of the constitutional instrument; in the new regulation this just about a factual statement. Reading “…” Now, my lords, the statement there is quite clear about the interposition of the regional collation centres as source of error. And exhibit C is also provided in the petition with the sample details. My lords, it needs to be clear, unlike, perhaps, in the 2012/13 petition, the petitioner didn’t come to court to say that annul 4 million votes of voters who have voted. Annul them because, in some cases, pink sheets did not have presiding officer’s signature, or there were duplicate serial numbers, that is not the nature of this petition. The petitioner is saying a certain declaration was made on 9th December, and it was publicly made, and we all heard it. The petitioner is saying when you look at the figures in that declaration itself, those figures do not amount to the compliance with the constitutional provision. Paragraph 30, what the petitioner is seeking to do, is precisely to provide, as it said, a sample of wrong aggregation, and the petitioner is attributing that to the interposition of the regional collation centres, and that is the import of that paragraph. And that import is related to lack of transparency that we have.
Gertrude: Mr Tsikata, your pleading comes from the new regulation of the law. The testimony of your witness; the new regulation …
Tsikata: Yes and its operation; the way this regulation was operated in practice.
Gertrude: And the objection seems to suggest that the new regulation of the first respondent was to ensure that process of collation and aggregation of votes were introduced without good reason, and yet that was introduced through a law. It was a law that provided that framework. And that is the complaint.
Tsikata: It was a subsidiary legislation made by the 1st respondent, and witness statement is indicating that operation of that was a matter of law, but you can operate a legal provision in a manner that leads to wrong results. That is what we are saying. I mean you could operate the creation of the regional centres in a transparent way, which does not lead to the results.
Gertrude: You are inviting us to make an inference or what?
Tsikata: My lords, I am not inviting you to just make an inference. I’m saying that we pleaded a lack of transparency; we have pleaded a lack of consultation in respect of how these figures popped up, and the witness statement is showing one of the ways that lack of transparency was demonstrated in the actual conduct of the 1st respondent. That is what the witness statement is seeking to do as a matter of evidence.
Judge: There’s nothing in the petition about collation issues. There’s nothing in the petition about the collation process that resulted in changing of figures.
Tsikata: We have pleaded the fact that numbers were being changed by the 1st respondent without any transparency.
Judge: Mr Tsikata, if that is your case, that should be in your petition – that A B C should be in this polling station, constituency, regional collation centre, this figure changed. There’s nothing about this in the petition.
Tsikata: My lords, the petitioner is not the returning officer for the presidential election. The petitioner is challenging, firstly, on the basis you made a declaration, which you put forward certain numbers, and on the face of your declaration, those numbers do not warrant your exercise of your constitutional responsibility the way you did. That is the basic point of the petition. My lords, the petitioner makes it clear that his challenge is on the basis the person who is the returning officer; that person has purportedly made a declaration as that one elects and yet the figures that she has put in that are the basis of her declaration, those figures do not warrant a declaration. So, my lords, at the heart of that petition is the issue of the numbers that were acted upon. First respondent put up answer, which the first respondent effectively says I’m actually admitting that there were errors, but one, they were inadvertent and they were corrected by a press release on the 10th December. And he points out the so-called correction itself, contains mistakes, and we pointed out that clearly. And we further pointed out that those figures kept changing right up to the point where…
Akoto Ampaw: My lords, with respect, counsel has been repeating same things for the past 15 or 20 minutes.
Tsikata: My lords, that was meant to throw me off the course of my argument or what? With respect, this is intolerable because I was in a middle of a sentence actually. It is not appropriate to make this kind of interjection.
CJ: When you want to raise an objection it has to be timeously so that you don’t disrupt.
Akoto Ampaw: My lords, I thought I was raising it timeously.
CJ: It must be professionally.
Tsikata: My lords, I believe I was in the process of explaining that at the heart of the petitioner’s petition before this court is the challenge to the declaration. It is not only the challenge about figures, but it is a challenge related to constitutional consequences arising from this figures. And we are saying that in effect the answer of the 1st respondent actually acknowledges there were errors.
Gertrude: Mr Tsikata, you’re supposed to be speaking to paragraph 30, which is about the collation, and the question from my brother on my right was that there is nothing in your pleadings about the collation process.
Tsikata: My lords, with respect, the point that I was leading is because the 1st respondent is the official responsible for those processes, and the first respondent, in the answer, tabulates so-called primary, secondary, tertiary and … stage. And she relates to the collation process. The witness statement is also in response to the matters in the answer of the 1st respondent, because the witness is addressing the case of the 1st Respondent as well. The witness has to respond to the case of the respondent as well. It is the case of the 1st respondent that she went through these four stages, and she, in effect, is explaining herself and the conduct, and we are saying that on that basis the witness. My lord, if the witness were giving oral evidence, I will be entitled to lead him in saying in the answer of the 1st respondent that they have said they went through this and this, what you have to say to that. My lord, that is perfectly legitimate if I were leading him in normal proceedings.
Judge: Counsel, with the greatest respect, my problem is in the petition itself; the petitioner did not raise any issue with C.I.127 – The law that regulated the elections.
Tsikata: And the petitioner did not seek to raise an issue about…
Judge: But paragraph 30 of the witness statement; the witness is trying to raise an issue with C.I. 127.
Tsikata: The petitioner is raising an issue that the 1st respondent, without good reason, interposed that regional collation centres. The C.1. 127 has to be executed… If the petitioner is making this interposition without any good reason, and the petitioner, as a result, had problems in the collation, which we seek to demonstrate with same samples, that respectfully, is the answer to their answer; to attempt that they did everything, according to the processes they outlined in their answer. My lords, I don’t think there’s any doubt in the answer. If I could in oral testimony ask him, what do you have to say to paragraph 5 of the answer of the first respondent, which says they went in accordance with this and that, would he not be able to provide the answer that he has provided in paragraph 30, because the first respondent has put in issue exactly those processes. While those processes come into dispute, particularly in this election petition, because pleadings relates to what is referred to as votes padding or wrongful aggregation of votes and so on, and our pleadings relating that, I do want to insist and your lordships can correct me if you are being led in the witness box in oral evidence, would I not be able to put the case of the 1st Respondent to him?
Judge: You could but the way you have framed the evidence in paragraph 30. Who are you blaming? Look at paragraph 30 very carefully.
Tsikata: Whom am I blaming?
Judge: Yes, in this evidence. Is it Parliament or the 1st Respondent, or the structure that was established?
Tsikata: My lords, Parliament has nothing to do with this, because this is subsidiary legislation.
Judge: But it was laid before Parliament for 21 days.
Tsikata: It’s not actually the essence.
Gertrude: It is. It is really the essence.
Tsikata: So is Parliament responsible for all subsidiary legislations?
Judge: The testimony, as far as I understand it, you are blaming C.I.127. Because, you are saying that out of C.I.127, it had bad motive, and for that matter votes were aggregated and changed and all that, but that is what the law requires.
Tsikata: No, we were saying that the implementation of the law is what occasioned the problem, and this interposition without good reason gave that opportunity for that rare error rigging implementation to take place, that is what we are saying.
Judge: If the problem is with the implementation of the law, in it sense 1st Respondent violates the law, but you did not indicate it anywhere.
Tsikata: Well, my lords, we are saying there’s a lack of due process in the implementation; an aspect of the implementation of the law. It doesn’t require us to challenge the law, or to say the law itself is the problem. We are saying the subsidiary legislation she introduced without good reason is part of the problem, and we have given samples of why that occasioned the problem.
In paragraph 32, indeed, in aggregating the votes, the total valid votes, as shown by the summary sheets released by the 1st Respondent on its website, the resultant figure is actually 13, 2…which is quite different from the one she released on the 9th December. My lords, how can there be an objection to that passage of evidence. That is the passage of the evidence which reference is being made to the website of the 1st respondent, in order to address figures that she herself or the 1st Respondent has put forward as a correction of the other figure she read, and we all heard. And subsequent to that, it is published on the website, 275 constituencies, and we do our arithmetic; we are saying that those figures actually result in this, and not actually in the figure of the purported correction. How could that not be a piece of material evidence from a witness in the election petition? And, my lord, this comes directly following paragraph 31, reading “…” And it follows what the 1st Respondent puts on the website, which is a contradiction to what she purportedly put in the answers, my lords.
CJ: They are not making any case against paragraph 32.
Tsikata: Paragraph 32, the figures that were published by the 1st Respondent on the website, when you put them together, and this again is the matter of different figures that we are being offered by way of correction, and then later. And I think this is a material piece of evidence, especially, my lord, when it is acknowledged that the witness have to put to him the case of the 1st Respondent. The case of the 1st Respondent is that inadvertent error was made, and it was subsequently corrected, and the correction itself was subsequently corrected. And we are saying when you take what is on the website it is effectively an admission that they were wrong, even in the purported correction. And this is a clearly material piece of evidence.
Paragraph 33, again, this is a statement on that point that the aggregated figures from the total valid votes has shown by the 275 summary sheets released by the 1st Respondent on its website is also different from the correct figure of 10th December of the unsigned press release. So paragraph 32 make reference to the figures on the website, and then paragraph 33 says that was also different from the corrected figure. My lords, with the greatest respect, the issue that is at stake in the election petition is the conduct of the 1st Respondent as the Returning Officer of the presidential election.
Justice Gertrude: Which relief relates to the conduct for settlement?
Tsikata: The relief that we have put down a number of reliefs; relief 8 is that the Chairperson was in breach of articles 63(2). Now we have set out in the pleadings the basis of our said constitutionality, including the failure of article 33 and respect of article 296. And we set them out. And Paragraph 32 and 33, we are responding as we are entitled to the case the 1st Respondent is putting forward, and she puts forward certain numbers, and we are responding to those numbers. And, with the greatest respect, that evidence is a relevant matter. My lords, these attempts at objecting this witness statement, which is extremely material – matters that relate to the case that being presented by the 1st Respondent are matters we consider very seriously.
Paragraph 37: again, my lords, paragraph 37 cannot be read in isolation of the previous paragraph, because when you say this conduct and it cannot be read without going back to 36. Because 36 says, “…” This conduct that is being referred to in 37, reading “…” This, again, is evidence that concludes paragraph 36, and Paragraph 36 is not being objected and its conclusion… My lords, whether indeed numbers were being manufactured or not is obviously a question of fact, an issue that needs to be resolved by the evidence of the parties, and by the determination of which evidence is worthy of acceptance as truthful evidence. Therefore, we submit that none of these passages of evidence can be considered as passages that cannot be legitimate within statement of our witness.
Akoto: May I have the leave by the court to reply. My lords, I wish to refer to Order 11, Rule 12(1) if C.I.47, reading: “…”
Nene: Mr Akoto Ampaw, what you just read, it is the practice and proceedings in the High Court. What is before us is not pleadings properly, if so called. This is an election petition and it is regulated by the rules and other things. So we have made it clear that we are not applying the High Court Civil Procedure rules in this case. We are applying the Evidence Act for taking and admissibility of evidence in this case. So allow us to regulate the procedure, because this is an election petition. It appears it is something new, so the lawyers keep referring us to the High Court Civil Procedure and other things, but this a peculiar jurisdiction that we are exercising.
Akoto Ampaw: My understanding is that these rules may provide guidance to the court, and it is part of our legal practice; that when a party alleges matters in relation to a statement … like predetermined and prejudice, he must give particulars in his petition. The petitioner never gave the particulars to the alleged predetermined intention, bias, and so on.
Tsikata: May I seek your permission to address. A new point of law has been raised because…
Judge: Your points have well been made in your submission. This is the ruling of the court:
The first 1st and 2nd Respondents have raised objections to parts of the witness statement of Mr Johnson Asiedu Nketia who has been sworn in as PWI. The objections to those paragraphs, precisely paragraphs 21, 6, 7, 25, 26, 28, 30, 32, 33, and 37. Both counsel based their objections to the paragraphs on the witness statement of PW1 on two grounds:
a. That some of the paragraphs are not based on the pleadings on the record
b. Some of the statements are unduly scandalous and prejudicial
It would be pleasurable to set out the paragraphs in the witness statement, which, in our view, are mendable, to be struck out from the witness statement. We are of the view that paragraphs 6 and 7 ought to be struck out because the witness, Mr Johnson Asiedu Nketia, cannot testify on the fact of the said paragraphs. It would be admissible if the petitioner himself is testifying. The statements in the said paragraphs are not within the knowledge of the witness. We found paragraph 21 as a matter which has its foundations in the pleadings, and same is accordingly maintained. As regards to paragraph 25, we found out that part; which is the sentence; which begins with, “in fact, the ever changing figures,” the end of that paragraph is hereby struck out. It has no basis in the pleadings. In respect of paragraph 26, we are of the opinion that the statement, from line 5 above, beginning with “the Chairperson of the 1st Respondent” to the end of the paragraph is struck out on the basis that it has no foundation in the pleadings. As regards to paragraph 28, from line 6, that is the sentence beginning from “the secrecy and the lack of transparency” to the end of the line, is not borne out of the pleadings, and we accordingly strike it out. In respect of paragraph 30, the court is of the view that it has no foundation in the pleadings, as it just refers to C.I 127, which the witness cannot testify on the said C.I. As regards to paragraph 32 and 33, we found that they are based on the pleadings and ought to be part of the witness statement, and they are accordingly maintained. In respect of the paragraph 37 of the witness statement, we found that it is just an inference to be drawn, and it, therefore, not evidence. We, therefore, proceed to strike it out. The court, therefore, orders the paragraphs referred to as offending the law and are hereby expunged from the witness statement of PW1.
Counsel for 1st & 2nd respondents: My lords, we are most grateful.
Tsikata: As the court pleases. For the sake of clarity, I would like to understand what was said in respect of paragraph 30 – the reference to the regulations in C.I. 127, the rest of the paragraph, including exhibit C.
Judge: The whole of paragraph 30.