AN Accra High Court has fixed May 9, 2005, to decide whether or not a petition filed by the National Democratic Congress (NDC) parliamentary candidate for Ledzokuku Constituency, Nii Nortey Dua, against the Electoral Commission (EC) and the Member of Parliament for the area, Gladys Nortey Ashitey, should be set for legal arguments.
Nii Nortey Dua filed the petition seeking an order for scrutiny and a recount of all the valid votes cast in the constituency during the December 7, 2004 parliamentary election and a collation of the figures obtained.
He is also seeking an order to declare him winner of the election.
After the petition, the EC filed a motion praying the court to set down issues arising from pleadings for legal arguments under Order 33 Rules 3 and 5 of the High Court (Civil Procedure) Rules, 2004, (C.I. 47).
However, counsel for the petitioner argued among others that since the respondents? application was based on matters of fact which were not before the court they were trying to prevent it from getting that evidence.
It is the contention of the EC that the petitioner having failed through himself and his agents, to request for a recount of the votes cast at any and all of the polling stations in the constituency, contrary to Regulation 37 (3) of the Public Elections Regulations, 1996, C.I. 15, could not claim the reliefs being sought.
Furthermore, the EC stated that the petitioner having failed to state in writing to the Presiding Officer any reason for failing to sign the Election Results Declaration Forms, contrary to Regulation 36(3) of C.I. 15 could only raise by his pleadings, the relief sought.
It argued over whether or not the petitioner, having failed to protest against the rejection of any ballot papers at any and all the polling stations in the constituency, could raise by his pleadings, the reliefs being sought.
Nii Nortey Dua stated that on December 7, 2004, the Returning Officer wrongly declared the following results for the contestants: Ebenezer Nii Otu Anang of the People?s National Convention (PNC), 431 votes; Gladys Nortey Ashitey of the New Patriotic Party (NPP), 33,039 and Nii Nortey Dua of the NDC, 32,269.
The rest were Trebi Sampson Nii Ashitey, Convention People?s Party (CPP), 512 and Emmanuel Nii Ashie, Independent, 10,523.
He argued that upon proper count of the lawful valid votes cast in the election, he should have been declared winner with total votes of 33,059 while the second respondent should have been credited with 33,039 votes.
According to the petitioner, when the results were gazetted the EC credited each of the contesting parliamentary candidates as PNC, 431; NPP, 33,039; NDC, 32,169; CPP, 512 and Independent, 10,532. He alleged that before the elections on December 7, 2004, it was detected that 1,950 ballot papers which were meant for use in the parliamentary election for the constituency were stolen in the custody of the police and could not be traced to date.
Nii Dua said he immediately wrote to the EC on December 6, 2004, drawing attention to the stolen ballot papers but the EC refused to or neglected to do anything and in fact failed to acknowledge receipt of his letter.
He said after the elections, an examination of the results, especially the statement of the poll for the Office of Parliament, showed great disparities in the records of the EC and some polling stations with regard to the number of ballot papers supplied and the actual ballot papers that were used.
According to him, at one polling station, the Presiding Officer rejected about 30 valid votes thumb-printed on the symbol of the NDC and when his party agent raised an objection, the officer exercised his discretion while at another polling station about 20 votes in which the intention of the voters could not be clearly ascertained were counted for the NPP parliamentary candidate.
In an affidavit in support of its motion, the EC said, by virtue of the reliefs being sought by the petitioner, it was necessary for the court to determine whether the petition discloses reasonable cause of action and whether the preliminary prerequisites required under the law had been satisfied before the petition was filed.
It said the petitioner was required to comply with provisions of the Public Elections Regulations, 1996, C.I. 15 before bringing the petition before the court but did not do that because his agents did not state in writing to the Presiding Officer, their reason for failing to sign the Declaration of Results Form as required by regulation.
Besides, it argued that neither the petitioner nor his agents asked the Presiding Officer for a recount of votes when counting of votes was completed, as required. They also did not protest about the rejection of ballot papers and did not mark such papers ?rejection objected to? as required by law.
It stated that the petitioner?s agents failed to comply with the regulations of C.I. 15 and he could not later petition the court relating to the same matters and was therefore not entitled to the reliefs being sought.
