Written Address Sumitted by the NDC to the SC - Part 1

We published below details of the written address submitted by Mr Tsatsu Tsikata, Counsel for the National Democratic Congress (NDC) and his team to the Supreme Court to discount the bogus petition case by Nana Akufo-Addo and Co. challenging the results of the 2012 Presidential Election.

The address has been divided into three parts. This is Part 1. We will roll out Part 2 and the Final Part in due course. Please read the details as much as you can and draw your own conclusions. We ask the Good Lord to richly bless and guide you as you read along!

Yours Truly,

MJ

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA

WRIT NO. J1/6/2013

PRESIDENTIAL ELECTION PETITION

IN THE MATTER OF A PETITION CHALLENGING THE VALIDITY OF THE ELECTION OF JOHN DRAMANI MAHAMA AS PRESIDENT OF THE REPUBLIC OF GHANA PURSUANT TO THE PRESIDENTIAL ELECTION HELD ON 7TH AND 8TH DECEMBER, 2012

Article 64 of the Constitution, 1992; Section 5 of the Presidential Election Act, 1992 (PNDCL 285); and Rule 68 and 68A of the Supreme Court (Amendment) Rules 2012, C. I. 74

BETWEEN

1. NANA ADDO DANKWA AKUFO-ADDO ) - PETITIONERS

2. DR. MAHAMADU BAWUMIA )

3. JAKE OBETSEBI LAMPTEY )

AND

1. JOHN DRAMANI MAHAMA ) - RESPONDENTS

2. THE ELECTORAL COMMISSION )

3. NATIONAL DEMOCRATIC CONGRESS )

WRITTEN SUBMISSIONS FILED ON BEHALF OF 3RD RESPONDENT

A. INTRODUCTION

1. The petition in this case was originally filed on 28th December, 2012 and amended twice pursuant to leave granted by the Court. The 2ndAmended Petition filed on 8th February, 2013, seeks the following reliefs: “...... that the Supreme Court declares:

(1) That John Dramani Mahama, the 2nd Respondent herein was not validly elected President of the Republic of Ghana.

(2) That Nana Addo Dankwa Akufo-Addo, the 1st Petitioner herein, rather was validly elected President of the Republic of Ghana.

(3) Consequential orders as to this Court may seem meet.” (see paragraph 30 of the 2nd Amended Petition).

The Court, on 2nd April 2013, set down the following issues arising from the pleadings for determination in this suit. .

“(i) whether or not there were violations, omissions, malpractices and irregularities in the conduct of the presidential election held on 7th and 8th December 2012; and

(ii) whether or not such violations, omissions, malpractices and irregularities, if any, affected the outcome of the said election.”

B. SUMMARY OF WHY PETITION FAILS

2. It is our submission that the Petitioners have woefully failed to establish the alleged “irregularities, violations “etc., nor have they proved that the alleged “irregularities, violations” etc. affected the outcome of the 2012 Presidential election. We will make it abundantly clear to this Honourable Court that the case presented by the Petitioners comes nowhere close to discharging the burden of proof that lies on them to establish their allegations and warrant the reliefs they seek from this Honourable Court. On the contrary, the documentary evidence provided by them and the oral testimony of their witness, the 2nd Petitioner, contains admissions about the results declared which fundamentally undermine the case of the Petitioners and confirm the position of the Respondents that the elections were conducted freely and fairly and that the results declared by the Chairman of 2nd Respondent, namely that 1st Respondent was the winner of the 2012 Presidential election, reflected the sovereign will of the people of Ghana and were lawful. It is our respectful submission that, on a correct interpretation of constitutional provisions and other laws governing the election and having regard to the evidence before this Court, the following conclusions regarding the main allegations of the Petitioners emerge clearly.

(i) There was no evidence that any voter in the election voted more than once or that any person not entitled to vote was allowed to vote. Indeed, the evidence proffered by Petitioners themselves showed overwhelmingly that the candidate’s agents of the 1st Petitioner, as well as other candidates’ agents, signed the declaration of results in the various polling stations after votes were counted in full public view. No complaint by the agents of the candidates at polling stations or constituency centres regarding over-voting was recorded anywhere. The claims of over voting of the Petitioners were, in large part, admitted not to hold and were abandoned by 2nd Petitioner under cross-examination. Claims still pressed by Petitioners are also untenable on a proper interpretation of information provided on the pink sheets and available evidence and must all be rejected.

(ii) The challenges of the country using biometric verification devices for the first time in elections in Ghana were successfully overcome and no one voted without going through the biometric verification process. The testimony provided by the Chairman of the 2nd Respondent, about the C3 column on the Statement of Poll and Declaration of Results for the office of the President forms (“the pink sheets”) , was unchallenged and explained the problems the Presiding Officers had in filling that part of the pink sheet .

(iii) The absence of the signature of the Presiding Officer on the pink sheets does not justify annulment of votes that were cast lawfully in the exercise of the constitutional rights of citizens. While failure to sign constitutes a breach of the duty imposed on that election official by the Constitution, nowhere does the Constitution require or justify the annulment of votes cast and, hence, the results announced at the relevant polling station because of such a breach. The Presiding Officers can be compelled to perform their duty to sign, by order of mandamus. Annulment of votes in these situations would not only be an unconstitutional deprivation of the right to vote of the citizen but would also amount to punishing innocent voters retroactively for the omission of the Presiding Officer.

(iv) The claim by the Petitioners that unique serial numbers were provided to polling station pink sheets was baseless and there was no irregularity involved in the same serial number appearing on more than one such pink sheet. The attempt to nullify votes on this ground is absurd and to do so would also unconstitutionally deprive millions of citizens of their right to vote. Serial numbers are not, and have never been, security features on pink sheets, unlike ballot papers. Petitioners have provided no legal basis for this category of their claim.

(v) Claims about unknown polling stations were also baseless and Petitioners who deployed agents on behalf of the 1st Petitioner cannot in good faith make these claims. Claims about different results being given for the same polling station are also not warranted.

(vi) The claims about vote padding in favour of 1st Respondent and reduction of votes of 1st Petitioner (except in one instance of an error in transposition affecting 80 votes), as well as allegations about improper receipt and transmission of results at the offices of Superlock Technologies Limited (“STL”), were withdrawn and were also not borne out by the evidence.

3. Even before elaborating on the evidence and submissions of law that lead to the above conclusions, however, there is an even more basic reason why the claims of the Petitioners must fail in limine. The claim in the 2nd Amended Petition the verifying affidavit of 1st Petitioner that results in 11,916 polling stations were being put in issue, and the subsequent claim in the affidavit of the 2nd Petitioner to have filed 11,842 exhibits in 24 (twenty-four) mutually exclusive categories numbering and representing 11,842 different polling station results which are being sought to be annulled, have been shown to be untrue. The referee, KPMG, found the number of polling stations that were uniquely identified to be 8675.

4. In the 8675 polling stations figure given by the KPMG representative, 339 of this number listed as Appendix E.4 in Volume 5 of the Report (pages 193 to 201) must be immediately taken out as they appear in Exhibits that are indisputably out of the range indicated in the relevant paragraph (paragraph 56) of the affidavit of the 2nd Petitioner. There are also 93 of these 8675 polling stations that were not within the polling stations that were disclosed by Petitioners as part of their case when the Court ordered further and better particulars of the 11,916 polling stations. Worse still, as further elaborated below in the section of these submissions on the evidential burden not being discharged, the exhibits of the Petitioners are often contradictory, with the same polling station sometimes featuring under different exhibit numbers, or one exhibit number being used for two different polling stations. There is total confusion in the exhibits and thousands of them must be wholly discounted as not usable or being incapable of providing evidence. As we argue further below, it is impossible to make a cogent case out of this exhibit mess which Petitioners should have cleared up by now, but have failed to do. That failure is now irredeemable.

C. THE CASE OF THE PETITIONERS

5. In paragraph 23 of the 2nd Amended Petition, the Petitioners allege the following main irregularities, violations, etc. in the conduct of the Presidential election: Over-voting, voting without biometric verification, absence of signature of Presiding Officer on “pink sheet”, and the same serial number on “pink sheets” for different polling stations. On account of these claims Petitioners seek to have votes annulled. They also claimed in paragraph 24 that there were cases of illegal padding of votes of the 1st Respondent, on the one hand, and reduction of votes of the 1stPetitioner, on the other hand. It is also the contention of the Petitioners that there were “unknown polling stations” where voting took place and votes at these places should also not count. Petitioners also claim that in certain instances, there were different results given for the same polling station.

6. The total number of polling stations affected by the allegations of the Petitioners was given in the 2nd Amended Petition and the verifying affidavit sworn to by the 1st Petitioner as 11,916. The Petitioners claim that the votes at these polling stations should be annulled and gave the total number of these votes as 4,670,504 (four million, six hundred and seventy thousand, five hundred and four), a figure which is also in the verifying affidavit of the 1st Petitioner attached to the 2nd Amended Petition. In the affidavit filed on behalf of the Petitioners by 2nd Petitioner, the figure of votes to be annulled is 4,637,305 (four million, six hundred and thirty-seven thousand, three hundred and five). It is noteworthy that the number of votes sought to be annulled is almost half of votes cast in the election and almost a third of the registered voters for the election.

7. The Petitioners, in the 2nd Amended Petition, created 26 categories into which they put various combinations of their allegations (by the time of the affidavit of 2nd Petitioner, these were down to 24) and claimed that each of these categories was exclusive of the others. In each category, they indicated the number of votes they seek to have annulled (see paragraph 27 of 2nd Amended Petition and paragraphs 44 to 67 of the affidavit of 2nd Petitioner). The category accounting for most of the votes Petitioners seek to annul is the duplicate serial number category in paragraph 56 of the 2nd Petitioner’s affidavit. The number of votes to be annulled in this category exclusively, according to the 2nd Amended Petition, verified by the affidavit of the 1st Petitioner, is 2,583,633 (two million five hundred and eighty-three thousand, six hundred and thirty-three), and according to the affidavit of 2nd Petitioner is (2,614,556) two million six hundred and fourteen thousand, five hundred and fifty-six. The Petitioners claimed that with all the votes in the 11,916 polling stations being annulled, the 1st Petitioner would be the winner of the election and should be so declared by the Court. The 11,916 was purportedly reduced to 11,842 polling stations in the affidavit of 2nd Petitioner and has been further reduced again a number of times during the oral testimony of 2nd Petitioner.

8. Under cross-examination, 2nd Petitioner admitted that the figure in paragraph 44 of 320 polling stations where he alleged exclusive instances of over-voting took place was wrong having regard to the statement in paragraph 37 of his affidavit that: “...... while over voting occurred in 2065 polling stations, in 1755 of these … over voting took place along with NBV, DS, NS and DP.” The figure of 320 should have been 310. 44, the number of exhibits alleged to have been filed was 320 and, in the KPMG Report, 318 exhibits are recorded in this category (see Appendix A.2.1 at pages 11 to 18 of Volume 1 of the Report). Even while admitting the error, 2nd Petitioner asserted that the number of affected votes was the same, suggesting quite strangely that, irrespective of changes in the number of polling stations in a category, the number of affected votes is the same!

9. Again, in paragraphs 38 and 52 the figure of 379 given for polling stations where exclusive instances of voting without biometric registration should have been 388 if, as suggested in the first sentence of paragraph 38, there is meant to be a subtraction of the figure 1,891 from 2279. On the other hand, Appendix A.2.9 in the KPMG Report (pages 87 to 97, Volume 1) lists 382 sheets counted, two pairs of which share an exhibit number (MB-L 374 and MB-L 147) but with different polling situations in the two exhibits. In paragraph 38 also, the first sentence contains another error: “That while voting without biometric verification occurred in 2,279 polling stations, in 1891 of these stations, .., over voting [sic] took place along with DS, NS and DP.” “Over-voting” in the second half of the paragraph may have been intended to be “voting without biometric verification”. It would have been expected that Petitioners would make the needed corrections to these errors, after the matter arose in cross-examination. Paragraph 39 of the affidavit also has an apparently erroneous figure of 306 as the number of exclusive instances of absence of signature of presiding officers. In the corresponding paragraph 58, the correct figure of 310 for the category is given.

10. In paragraph 71 of his affidavit, 2nd Petitioner goes on to state the main thrust of the case of the Petitioners: “That upon the annulment of the votes in the eleven thousand eight hundred and forty two (11,842) (Emphasis 2nd Petitioner’s) polling stations, the affected number of votes which were originally credited to each candidate in the presidential election and which ought to be deducted from the respective votes declared in favour of each candidate are as follows...........”. He proceeds to give the figures against the respective candidates. That total figure of 11,842 polling stations was reduced by 2nd Petitioner under cross-examination, initially by 83 and then by 704 No explanation was provided as to how, with these reductions in polling stations, the same number of votes to be annulled, as stated in the affidavit of 2nd Petitioner, could be achieved.

11. The 11,916 was not only reduced to 11,842 polling stations in the affidavit of 2nd Petitioner but further reduced to 11,221 in his testimony before the Court. He stated:

“My lords, as you recall in my affidavit, I stated that we were going to lead evidence or deal with 11,842 polling stations. In our submission of the evidence we actually ended up submitting 11,221 polling stations. And then subsequently after further quality review we have deleted 83 polling stations. So this brings us to a total of 11,138 and these polling stations that we have deleted I am happy I have a copy of them to make copies available to everybody and all my analysis yesterday was based on 11,138 polling stations.” (See pages 13, 14, and 28 of the transcripts of the proceedings of 18th April 2013)

12. Thus since the filing of the affidavit of the 2nd Petitioner, the Petitioners claimed to have deleted in total 704 polling stations from the figure of 11,842 stated in the 2nd Petitioner’s affidavit. (See also page 80 of the transcripts of the Proceedings of 6thth May 2013). In the result as shown below, the Petitioners moved away from their original claim of having about 4.63 million votes annulled to a new claim of having 4,381,415 votes annulled.

“Q. Now can you tell the court, the total number of votes that will be reduced as a result of this update in terms of the difference between the original number of votes you were seeking to have annulled and the total number of votes that you are seeking to have annulled now?

A. My lords, the difference between the original number of votes that we were seeking to have annulled, this is about 4.63 million and what we are seeking to have annulled now is 4.38 million is about 251,000 votes.

ADINYIRA: How many votes do you want to have annulled now?

WITNESS: The total number of votes we are seeking to have annulled now is 4,381,415 my lord.” (See page 14 of transcripts of proceedings of 18th April 2013)

13. During his cross-examination by Counsel for the 3rd Respondent, he maintained that they supplied 11,842 polling station results:

“Q. We are in the process of doing exactly that and that is why I am putting it to you that in your Exhibit MB-P category, that is where you massed up your heap of papers, duplicated, triplicated, quadruplicated, it is in exhibit P that we find that happening most?

A. My lord we are totally rejecting that proposition. We have pink sheets for every one of the 11,842 polling stations.”

(See page 43 of the transcripts of proceedings of 9th May 2013)

On the last day but one of the trial, in cross-examination of Dr. Afari-Gyan, Counsel for the Petitioners, in a final throw of the dice, yet again put new figures - both as regards polling stations and as regards votes to be annulled – to the witness as representing the case of the Petitioners:

“Q. Out of the total of 10,081 polling stations, total over votes amounted to 742,492?

A. My lord unless I know the specific polling stations it will be difficult to say yes or no…

Q. The total of all the violations and irregularities affects 3,916,385 votes. Of that 2,612,788 are votes attributed to the 1st Respondent and 1,228,229 are votes attributed to the 1st Petitioner?

A. My lords I have no basis for knowing that.”

Q. You will see from the figures we have been looking that the major beneficiary of these violations is the 1st Respondent?

A. My lords that is not correct…” (See pages 48 and 49 of the transcripts of the proceedings of 16th July 2013).

14. The answer that Dr. Afari-Gyan gave to Counsel for the Petitioners in response to these new figures is the response that we respectfully commend to this Honourable Court as the response to the whole Petition brought before you: “

“Q. So I am asking you do you have any other figures apart from the ones I have just quoted to you?

A: And I am saying that I have no basis to change the results as announced.” (See pages 49 of the transcripts of the Proceedings of 16th July 2013)

The figures put to Dr. Afari-Gyan in cross-examination by Counsel for the Petitioners as to the number of votes to be annulled basically rolled up, for instance, all the allegations of over-voting in the different categories, no matter whether the over-voting allegation occurs in a particular polling station with other alleged irregularity, violation etc. or not. The same goes for all the figures he put forward for voting without biometric verification, absence of signature of Presiding officer, duplicate serial number. None of his latest numbers were in terms of exclusive categories in the affidavit of 2nd Petitioner which initiated an attempt, albeit a failed one, to avoid double counting. As indicated by Dr. Afari-Gyan, without an indication of the polling stations –now reduced to 10,081-in relation to which these numbers are being put forward, and broken down into the 24 exclusive categories in the affidavit, those global figures have no value in these proceedings.

15. It is essential to identify which polling stations are included in the total numbers to enable clarity as to which votes are being sought to be annulled and also certainty that all polling stations included in those figures are among those in the exhibits identified in the KPMG Report and/or also in the further and better particulars. Your Lordships should, respectfully, be concerned about the situation we all currently find ourselves in. A Petition was filed with certain numbers. It was amended and new numbers were provided in the Amended Petition. Those numbers were changed again when it came to providing evidence in the affidavit that was filed in support of the case of the Petitioners. In the witness box during cross-examination those, numbers kept changing even though 2nd Petitioner insisted that deleting polling stations and the related votes did not change the totals. The new numbers Counsel for the Petitioners put forward at the end appear to recognize that the numbers of votes to be annulled would change as the polling stations in respect of which irregularities, violations etc. are alleged change. Any new number put forward must, therefore, have its associated list of polling stations where votes are being tallied for annulment. That is, indeed, why Your Lordships made your orders in respect of further and better particulars to be filed as to polling stations in contention. Respondents are entitled to know which specific polling stations are in issue so as to be able to answer the case of the Petitioners. The Court also needs clarity about this, especially as what is being sought is the annulment of votes, an issue of great constitutional significance.

16. The constantly changing figures of the Petitioners, from the original Petition to the last day but one of trial, portray the uncertain, speculative and indefinite nature of the case of the Petitioners. This is also what is reflected in the fact that though 2nd Petitioner confidently insisted that exhibits in respect of 11,842 had been filed, the report of the referee, KPMG, shows that this is far from the case as we elaborate further below. The confusion about the exhibits that we shall also elaborate is an apt characterization of the whole case of the Petitioners. 2nd Petitioner admitted, under cross-examination, major problems and errors in regard to their exhibits. In one case, for instance, an exhibit from a Parliamentary election was among their exhibits:

“Q: Now take a look at Exhibit MBP004890, the code number is K030206 and the name is Gudayiri Primary. Doc., is that presidential results?

A. No, this is for the office of the Member of Parliament. This is a parliamentary result.

Q. And what is it doing among your exhibits in support of presidential results?

A. I think we had seen this in reference to your response. I am not sure how it got in there. It is a parliamentary results; it should not be among the exhibits.” (see page 40 of transcripts of proceedings of 22nd April 2013).”

17. There were repetitions of exhibits, including repetitions of the same exhibit in different categories. He admitted numerous instances of irregularities in the exhibits, such as the lack of an exhibit number in the stamp of the Commissioner of Oaths before whom the affidavit was sworn, difficulties in identifying the number of the exhibit, illegible exhibits, the same polling station appearing in different exhibits. Many times he talked of “mislabelling” even though he could not say what the right label should have been on the exhibits which he claimed were mislabelled:

“Q. Look at this MBE 164 and then MBP 005038?

A. Yes my lord, it is the same situation of mislabelling of the pink sheet. In the analyses this pink sheet was used only once. (At page 32 of the transcripts of the proceedings of 30th April 2013; see also pages 29 to 33 of transcripts of the same date).”

18. 2nd Petitioner, by his submission of lists of deleted exhibits, admitted that many exhibits filed did not in fact support the case the Petitioners put forward and had to be discarded. In the absence of substitutes being provided for the discarded polling stations, the case of the Petitioners falls. Petitioners appear to believe that their ever-changing presentation of their Petition is not subject to rules concerning pleadings. The orders of the Court which require the provision of further and better particulars of the case of the Petitioners are, in effect, been disregarded through the manner in which the Petitioners have been proceeding. The Claim by 2nd Petitioner in cross-examination that, despite the admissions about certain exhibits not supporting the claims filed “the analysis remains the same is disingenuous and wholly untenable.

19. It is worth recalling that at the close of pleadings, upon the application of the Respondents, the Court ordered further and better particulars to be provided by the Petitioners regarding the 11,916 polling stations in respect of which the Petitioners claimed there had been various “irregularities, violations etc.” The Court also ordered further and better particulars in respect of the claim in paragraph 24 of the 2nd Amended Petition that votes for the 1st Respondent had been padded whilst those in favour of 1st Petitioner had been reduced. Evidently, for the case of the Petitioners to be made out, not only was there a need for them to provide further and better particulars according to the orders made by the Court, but they now have to provide the necessary proof of each of the allegations they particularise.

20. Further to that, and based on the orders of the Court for testimony to be provided by affidavit, the Petitioners filed an affidavit deposed to by the 2nd Petitioner with the evidence on which they rely. In this affidavit, filed on 7th April 2013, the Petitioners state their various allegations about irregularities, violations etc. in the conduct of the 2012 Presidential election and create twenty-four categories, with one or more of the six types of alleged irregularities, violations etc. The number of exhibits in respect of each of these categories is stated in the affidavit, with the numbers of votes that are sought to be annulled in each category being specifically given. These exhibits as placed in the different categories in paragraphs 44 to 67 of the affidavit -were supposedly attached to the affidavit and are meant to identify the polling stations in respect of each category so that it is clear how the numbers of votes being sought to be annulled have been arrived at. We show below that the confusion and contradiction of exhibits make it impossible to know exactly which votes from which polling stations the Petitioners are really asking to be annulled, which is a basic and major stumbling block to their case being tenable.

D. EVIDENTIAL BURDEN NOT DISCHARGED BY PETITIONERS

21. It is essential to proving the case of the Petitioners that they not only clearly establish the legal basis on which they ask this Honourable Court to annul votes of millions of voters, which would deprive these citizens of their constitutional right to vote, but also that they clearly establish the factual basis on which they have brought the petition. This requires that the pink sheets that they reference in the relevant paragraphs of the affidavit must be available to the Court and to the other parties. It is submitted that based on the uncontested evidence of the referee, KPMG, the Petitioners have failed to make available the pink sheets claimed to be made available in the affidavit of 2nd Petitioner and, for this reason alone, their petition must be dismissed.

22. In this context, it is necessary to emphasize the legal responsibility of the Petitioners to adduce evidence sufficient to discharge the evidential burden that is provided for in section 11(1) of the Evidence Decree 1975, (NRCD 323) as follows:

“For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.”

As indicated in the Commentary on the Decree: “Sections 10 and 11 provide convenient terminology for distinguishing between the risk of non-production of evidence and the risk of non-persuasion.” (page 14). A party with the burden of producing evidence must produce sufficient evidence to require the judge to weigh the evidence before deciding.

This is a threshold issue, different from the “burden of persuasion” which is provided for in section 10 of the Decree as follows:

“(1) For the purposes of this Decree, 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 to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establishes the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt.”

23. Her Ladyship, Mrs Justice Sophia Adinyira, JSC, succinctly summed up the law on the burden of proof by reference to this statute in Ackah v. Pergah Transport Limited & Others [2010] SCGLR 728, at page 736, as follows:

‘It is a basic principle of 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… It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that, on all the evidence, a reasonable mind could conclude that the existence of a fact is more reasonable than its non-existence. This is the requirement of the law on evidence under sections 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323).’

24. In this part of our submissions, we focus on the failure of the Petitioners’ case arising from non-production by them of the evidence which they state in their affidavit that they are producing. We highlight the following:

(i) The independent count by the referee of exhibits filed by the Petitioners and the description of what was filed not only shows that the number of exhibits alleged to have been filed by the Petitioners was not in fact filed, but also discloses total confusion and contradictions regarding their exhibits.

(ii) Far from clarifying the confusion and contradictions in exhibits, the oral evidence provided by the 2nd Petitioner, when confronted under cross-examination with examples of the confusion, compounded the problem as he belatedly admitted to “mix-ups”, “mislabelling” of the exhibits etc.

(iii) Exhibits filed by the Petitioners did not support the categories of claims their case was founded on and the figures provided by the 2nd Petitioners in respect of votes affected by the alleged irregularities and violations in each category are not borne out by exhibits filed by them, especially when account is taken of their deletion of some of the exhibits.

(iv) The Petitioners have failed to comply with basic legal and practical requirements of providing evidence to the Court in a coherent and usable manner to prove their case. No legally permissible evidence is available to this Court on the basis of which the evidential burden on the Petitioners can be said to have been discharged.

(v) Moreover, decisive evidence is provided on the face of the documents filed by the Petitioners themselves to confirm that the case of the Petitioners is flawed from the outset. In particular, the certification of results by the agents for the 1st Petitioner at the polling stations in respect of which pink sheets have been filed, a fact that is clear on the face of the pink sheets, contradicts the case put forward before this Court by the Petitioners.

25. “You and I were not there!” This oft-repeated statement of 2nd Petitioner actually undermines the value of his evidence completely since he is admitting his lack of personal knowledge and, therefore, his lack of qualification to be a witness as to the facts in issue. Section 60 (1) of the Evidence Decree states: “A witness may not testify to a matter unless sufficient evidence is introduced to support a finding that he has personal knowledge of the matter.” As illustrated by his evidence set out below, 2nd Petitioner explicitly disavowed any personal knowledge, thus disqualifying himself as a witness of the matters in issue.

“Q. I am suggesting to you that this is clearly an error of picking up and filling part C1 with it.

A. You and I were not there, we can only take the evidence on the face of the pink sheets.” (See page 68 of the transcripts of proceedings of 23rd April 2013)

“A. You and I were not there, we are speaking about the records, the pink sheet is telling us that all the voters voted without biometric verification.” (See page 52 of the transcripts of proceedings of 25th April 2013”)

He relied totally on the ballot accounting part of the pink sheet for support in respect of allegations of irregularities.

26. As seen on the pink sheet itself, there are two Forms of the Electoral Commission that have been combined into one. Form EL 21B is for ballot accounting information and Form EL 22B is for the results of votes counted. This distinction came out clearly during the cross-examination of Johnson Asiedu Nketia by Counsel for the Petitioners:

“A: … I need to say that the top part of the pink sheet is a different form called Form EL 21B and the declaration part which is down is also called Form EL 22B, so they are two different forms which make up the pink sheet…

.................

A: Yes, my lord, it will be an entry error. And that is found on Form EL 21B which is different from the declaration form which is Form EL 22B” (See pages 10, 11 and 64 of transcripts of proceedings of 29th May 2013).

27. The ballot accounting part of the pink sheet is filled in with information which is taken from other primary sources. Thus, for instance, information about the number of persons registered at that polling station is taken from the register while information about ballot papers supplied to the polling station is also taken from the record of what was supplied to the polling station from the constituency level. Contrary to what 2nd Petitioner claimed, the pink sheet is not the “primary record” of most of those ballot accounting matters. We shall highlight below important differences in the two parts of the pink sheet, especially as they relate to the roles of the Presiding Officers and agents of the candidates as well as the modes of ascertaining the accuracy of information in each part.

E. FINDINGS OF REFEREE ON EXHIBITS

28. The report of the referee, KPMG, concerning the pink sheets, was tendered in evidence and admitted without objection as Exhibits 1, 1A, 1B, 1C. The representative of the firm, Nii Amanor Dodoo, who tendered the Report, was subjected to cross-examination by Counsel for all the parties. In his evidence, the representative gave the total number of polling station codes that were identified in the exhibits filed by the Petitioners and in the custody of the registrar as 8675. This was a far cry from the 11,842 alleged in the affidavit of 2nd Petitioner and maintained by him in oral evidence at one point as filed. At another point under cross-examination he claimed to have filed exhibits relating to 11,221 polling stations:

“My lords, as you recall in my affidavit, I stated that we were going to lead evidence or deal with 11,842 polling stations. In our submission of the evidence we actually ended up submitting 11,221 polling stations. And then subsequently after further quality review we have deleted 83 polling stations. So this brings us to a total of 11,138 and these polling stations that we have deleted I am happy I have a copy of them to make copies available to everybody and all my analysis yesterday was based on 11,138 polling stations.” (See pages 13, 14, and 28 of the transcripts of the proceedings of 18th April 2013).

29. At the tail end of cross-examination by Counsel for the 3rd Respondent, 2nd Petitioner not only claimed to have filed exhibits in respect of 11,842 polling stations but also claimed that in respect of each of the 24 categories in paragraphs 44 to 67 of his affidavit, he had filed the exhibits in respect of the number of polling stations stated in each paragraph.

30. The KPMG Report completely exposes all these claims of the 2nd Petitioner as false. In paragraph 2.3 of the Report, (Exhibit 1),Table 1 (at pages 7-8), which lists the exhibits filed by the Petitioners, based on information supplied by the Registrar, indicates gaps in the exhibits as shown even from the labelling of those in the P series. Line 18 of the Table has MB-P 476 to MB-P 1234 and the next line starts with MB-P 2070 and ends at 2818. Similarly, line 22 of the Table 2 has MB-P 2641 to MB-P 3106 and the next line starts with MB-P 3183 and ends at MB-P 3342. Line 24 of the Table has MB-P 3289 to MB-P 3345, while line 25 has MB-P 3810 to MB-P 4832. These gaps were also noted in paragraph 2.4 of the KPMG Report (page 7) as well as in the oral evidence of the KPMG representative. Beyond the labelling, the KPMG Report establishes that the exhibits filed by the Petitioners are not in respect of anything close to 11,842 polling stations.

31. The KPMG Report (Exhibit 1) records at page 5 (paragraph 2.3) that the referee obtained information from the Registrar about the process of filing of the exhibits. It is stated that at the time of filing of the exhibits, “..they were randomly checked with the Petitioners’ representatives. As some copies of the exhibits were not up to the number required a request was made for additional copies. Although additional copies were subsequently brought, they did not in all instances make up the number required.

“We understand from the Registrar that generally the court requires a minimum of ten copies of documents filed for its purposes.” The Report goes on to indicate from the Table 1 that in respect of most of the exhibits in the P series – as recorded from line 17 to line 32 of the Table - less than the minimum required number of copies were filed. Indeed, in six instances, only one copy was filed.

The KPMG representative indicated in his oral testimony that of the 13,926 exhibits counted, as many as 1545 had illegible data – partially or entirely. Since the referee was required by the Court to “specify[ing] in respect of each pink sheet, its exhibit number, if any, as well as its polling station name and code number”, the Report indicates, in respect of each of the 13926 exhibits counted, what is incomplete on each document and also lists these 1545 Exhibits in Appendix E.5 (Exhibit 1D).

32. As part of their bid to boost up the 8675 number of polling stations determined by the independent referee, the Petitioners applied to the Court to have a further determination by the referee, from extraneous information, of data on the unclear aspects of the list of 1545 referred to above. The application was dismissed, though the Court allowed Counsel for the Petitioners to cross-examine the 2nd Respondent’s witness, Dr. Afari-Gyan, Chairman of the Electoral Commission, on the identity of the polling stations using the polling station codes. Dr. Afari-Gyan indicated in this cross-examination that 1234 of those polling stations had been identified by their polling station code (see Exhibits BB and BB1. admitted in evidence during the cross-examination of Dr. Afari-Gyan), even more than the figure of 1219 which the Petitioners had identified (see Exhibit AA admitted in evidence during the cross-examination of Dr. Afari-Gyan). Counsel for the Petitioners has sought to add to the 8675 count the number of polling stations now identified in an attempt to get closer to the 11,842 figure of exhibits. This is, however, not proper. Identifying polling stations which are in the list of 1545 is one thing, but the use of an identified polling station in support of a particular claim of a violation requires the pink sheet from that identified polling station to be an exhibit in one of the categories specified in paragraphs 44 to 67 of the 2nd Petitioner’s affidavit. It is clear from the KPMG Report that, in that list of 1545, there are missing or unclear exhibit numbers in respect of many of the identified polling stations (Volume 5 of the KPMG Report, Appendix E.5, at page 203, column for Exhibit numbers).

33. There are, in some cases, numbers on the exhibit but no letter to show in what category of alleged irregularities, violations etc. the exhibit is to be placed. Thirty-eight times in Appendix E.5 there is an Exhibit MB-C-, an incomplete and meaningless number as far as paragraph 44, dealing with the C category, is concerned. There can be only one Exhibit MB-C, MB-C being the first of the expected 320 exhibits in the C series according to the scheme of numbering in paragraph 44 of the 2nd Petitioner’s affidavit. Clearly also, each numbered exhibit must correspond to one and only one polling station. It is, respectfully, not for the Court to assign exhibit numbers to clarify a party’s case, nor is it the responsibility of the Court to determine which of many polling stations bearing the same exhibit number is what Petitioners really intended. This situation, again entirely the making of the Petitioners, should also not open the way for them to disregard orders of the Court regarding the provision of further and better particulars to enable the Respondents to know what exactly is the case that they are required to answer.

F. UNUSABLE EXHIBITS AND EFFECT ON POLLING STATIONS IN ISSUE

34. It is striking in respect of exhibits in the P-series that large numbers of them are simply unusable for the purposes of determining the identity and/or number of polling stations in respect of which allegations are being made. In Appendix A.2.13 where data is captured in respect of the P-series, there is a glaring anomaly revealed whereby, for instance, (on pages 145 to 149), the first 171 sheets relate to MB-P, MB-P 000001-000170 and are followed by another 171 sheets (on pages 149 to 154) also with Exhibit numbers MB-P, MB-P 1-170 but with different polling stations in each case. On pages 162 to 175, data is captured for Exhibits MB-P 476 -1234 and followed by MB-P 476 -814 (pages 175-184) which have different polling stations from the earlier MB-P 476-814 exhibits. On pages 190 - 199, there are exhibits in the range MB-P 2314 - 2632 with different polling stations from a subsequent set that goes from MB-P 2314 on page 225 to MB-P 2613 on page 227. There are more instances of such confusion in relation to the exhibits, but the above should suffice to demonstrate that, in all these instances, the polling station to which reference is being made in the provision of evidence cannot be identified without a resolution of the contradictory sets of exhibits.

35. There are 2120 instances in the P-series of exhibits identified and counted in the KPMG Report where the same exhibit number is repeated in another exhibit but with a different polling station. In Appendix 1 attached to these submissions we list these 2120 exhibits with their exhibit numbers. Each of those 2120 exhibits is, simply, unusable as the pairs of exhibits with the same exhibit number, but different polling stations, contradict each other. The polling stations in these exhibits cannot be counted in determining which polling stations are in issue. This further reduces the 8675 number. A party putting forward its case cannot throw into Court contradictory sets of exhibits and expect the Court to sort out and choose among them. The Petitioners have created the situation for themselves and as they have the responsibility to present their own case, they cannot escape the consequences of the confused state of their exhibits.

36. The P-series is the worst in terms of the confusion of exhibits, a clear result of how this ill-considered claim became the centrepiece of the case of the Petitioners and got out of control as it took on a life of its own. It should be obvious how self-defeating and, indeed, time wasting, it has been for the Petitioners to be tilting at this particular windmill, particularly when 2nd Petitioner admitted that he could not refer to any particular legal or constitutional provision for this allegation.

37. We also submit that there is no basis for any of the exhibits counted in the Registrar’s set of exhibits, but which had only one copy supplied to the Registry of the Court, to be counted as exhibits in this Petition since their being available to be counted means that the single copy remained with the Registrar and neither the judges nor the Respondents could have been served with them. Indeed, wherever less than the required minimum of exhibit copies was made available to the Court even after the Registrar made known the shortfalls, the Petitioners cannot expect these exhibits to be used for the case. However, for the purposes of this initial issue of the evidential burden, no further deduction of polling stations has been made on this basis.

38. As further elaborated below, the above and other irregularities and violations of Court requirements regarding exhibits make it impossible for the documents to facilitate proof of the case of the Petitioners. The reality that emerges from the KPMG Report is that the exhibits filed by the Petitioners were “a jumble of paper with mislabellings, duplications and sometimes even quadruplications” (as Counsel for the 3rd Respondent put it to 2nd Petitioner in cross-examination - see page 11 of the transcripts of the proceedings of 6th May 2013). It is impossible to derive legally acceptable support for the allegations of the Petitioners and the reliefs they seek from this jumbled heap in which (i) the identities and numbers of the polling stations where Petitioners seek to have all votes annulled are in such disarray; and (ii) according to the authoritative count of the Referee, affirmed by all the parties, a significantly lower number of polling station pink sheets than what Petitioners claimed they had filed are in evidence.

39. In seeking to annul votes, it needs to be clear which polling stations are being called into question. The confusions about exhibits and the failure of the Petitioners, in filing their exhibits, to do so consistently with the affidavit of the 2nd Petitioner and in conformity with court practice, has undermined their case. As there is insufficient clarity on the polling stations in question, the attempt to annul certain votes cannot even get off the starting blocks.

40. Indeed, even adding the total number of polling stations identified to the 8675 polling stations indicated by the referee, less the 2120 unusable polling stations in the P-series, (Appendix 1 attached hereto), and the exhibits with only one set supplied to the court (Appendix 1A attached hereto) still leaves a huge shortfall in polling stations. The extent of the difference in numbers of polling stations from what the Petitioners claimed they were presenting to this Court is serious, especially when it is recalled that the original Petition filed on 28th December 2012 had put forward a case based on 4709 polling stations. Petitioners subsequently obtained leave from Your Lordships to amend their case to increase the number of polling stations to 11,916. Yet they have failed to produce the evidence to support anything close to the number of polling stations that they obtained leave to put across in their 2nd Amended Petition.