The seven-member panel of the apex court hearing the 2020 election petition filed by Mr John Dramani Mahama has given the petitioner and his lead Counsel, Tsatsu Tsikata, another shock, as their application to inspect documents of the 1st Respondent (Electoral Commission) was unanimously shot down yesterday.
The development comes to add to the list of motions from the side of the Petitioner that have suffered the same fate since the case commenced.
The Petitioner was seeking to inspect six documents, which included the original copies of the constituency presidential election results collation forms (Form 9) and summary sheets (Form 10) for all constituencies in Ghana.
The Petitioner also requested for the original copies of the regional presidential election result collation forms (Form 11) and summary sheets (Form 12) for all regions in Ghana, as well as the original of the declaration of the presidential election results form (Form 13), and “the records of the alleged update to the purported declaration of presidential election results on 9th December 2020 of the results of four constituencies in the Greater Accra Region.”
Arguing his case, Tsatsu Tsikata, Lead Counsel for the Petitioner, told the court that his side was asking for the original copies of those documents.
He directed the Bench to paragraph 6 of the motion, saying that what they were asking for also had to do with the records of the alleged update to the purported declaration.
He continued that, that alleged update was Exhibit ‘B’ attached to the witness statement of Petitioner’s witness one. He said that the figures in respect of that alleged update, including the figures of total valid votes, are different from the declaration that was made on the 9th December.
He further argued: “…Now your Lordships will note that in the answer of the 1st Respondent that was filed on the 9th of January. In that answer, the 1st Respondent now actually adopts the figure that we have calculated, and for the first time, the 1st Respondent also states 13,121,111 for the total valid votes cast.
So, the figure that we have calculated now becomes the basis of their answer. The stone which the builders rejected has become the capstone of the answer of the 1st Respondent.
“My Lords, these are the plain circumstances which necessitate a reference back to the original documents, which are in the custody of the 1st Respondent. So that there will be a proper validation of what the correct number is,” he added.
However, opposing the application, lead Counsel for the 1st Respondent, Justin Amenuvor, referenced Article 64(1) of the 1992 Constitution, stating that the Petitioner had 21 days from the date of the declaration to file the petition, but failed to add such a request.
Secondly, he argued that the application gave the 1st Respondent three days from the date of service to comply, but there is no such rule of the court in that regard.
Though the Bench reminded the Counsel that the application had come under mutual discovery, he held that even so, mutual discovery talks about 14 days. He relied on Rule 5 of the Supreme Court to solidify the point.
Counsel Amenuvor further made the point that the petitioner had failed to prove that the production for inspection by the 1st Respondent was necessary in those circumstances.
His reason was that the witnesses of the petitioner admitted that they had the documents, “and, my Lord, the way this process is, is that once the document is filled out, all the agents are given carbonised copies.”
Opening his argument, lead Counsel for the 2nd Respondent, Akoto Ampaw, believed that at the heart of the application was the question of which party bore the burden of persuasion and the burden of producing evidence.
He explained that the petitioner, by the admission of his own witnesses, and by law, had carbonised copies of all the processes from the polling station right up to the regional level, and even to the national collation centre.
“They have all the carbonised copies. Therefore, where the petitioner raises a question about the authenticity of any document, he must first produce what he has, and show that what he has is different from what the other party has,” he added.
Again, Counsel Akoto Ampaw argued that the Petitioner made a very serious statement about fair hearing. According to him, his understanding of the Petitioner’s submission was that the Petitioner was using the right to a fair hearing “to conjure away the burden of proof.”
Meanwhile, in its ruling, read by Chief Justice Anin Yeboah, the court held that Regulation 44 of C.I 127 sets out the different forms to be completed at the various stages of the electoral process, and the copies of the forms given to the accredited agents of each candidate.
The ruling said that the applicant had not demonstrated that he had no copies of the documents in question. It added that both witnesses of the petitioner had admitted on oath that the petitioner had copies of all the documents.
The ruling also stressed that the application for discovery and inspection required the discretion of the court.
Quoting section 166 of the Evidence Act, the court ruled that a duplicate of a document is as admissible, to the same extent that the original, unless a genuine question is raised as to authenticity of the duplicate, adding that no issue had been raised in that regard by the Petitioner.
According to the ruling: “The discrepancies, which learned counsel of the Petitioner has alluded to in his submissions, as having occurred in the declaration of 9th December, 2020, the press release of 10th December 2020, and the answer in the witness statement of the 1st Respondent, are issues of evidence and do not give cause for discovery of the documents under consideration. From the above reasons, the application is dismissed.”
The case was adjourned to tomorrow, Friday, February 5, 2021.