IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A. D. 2013

ATUGUBA, JSC (PRESIDING)

ANSAH, JSC
ADINYIRA (MRS), JSC
OWUSU (MS), JSC
DOTSE, JSC
ANIN-YEBOAH, JSC
BAFFOE-BONNIE, JSC
GBADEGBE, JSC
AKOTO-BAMFO (MRS), JSC

WRIT No. J1/6/2013

29TH AUGUST, 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 P residential

Election Act, 1992 (P NDCL 285); and Rule 68 and 68A of the
Suprem e Court (Am endm ent) Rules 2012, C.I . 74.

1
is anchored in article 49 of the 1992 constitution, which, as far as relevant,
provides thus:
“49. Voting at elections and referenda
(1) At any public election or referendum, voting shall be by secret
ballot.

(2) Immediately after the close of the poll, the presiding officer shall,
in the presence of such of the candidates or their representatives
and their polling agents as are present, proceed to count, at that
polling station, the ballot papers of that station and record the
votes cast in favour of each candidate or question.

(3) The presiding officer, the candidates or their representatives and,

in the case of a referendum, the parties contesting or their agents
and the polling agents if any, shall then sign a declaration stating
(a) the polling station, and
(b) the number of votes cast in favour of each candidate or
question,

and the presiding officer shall, there and then, announce the results of
the voting at that polling station before communicating them to the
returning officer.”(e.s)

It is undoubtable that in some instances the declared results were not signed by the
presiding officer though the petitioners’ polling agents did sign. The crucial
question that has devastated this court is whether those results should be annulled.

To arrive at an answer to this question a number of considerations are relevant. To

some minds the sacred nature of the constitution and the clarity of article 49 so far
as the requirement of the presiding officer’s signature is concerned warrant the
unmitigated annulment of the votes involved. Quite clearly however this has not
been the approach of this court and its predecessors to constitutional construction
or application.

5
Clear violation of Constitutional Provisions

Article 157 of the constitution provides as follows:

“157. Rules of Court Committee
(1) There shall be a Rules of Court Committee which shall consist of

(a) the Chief Justice, who shall be Chairman,

(b) Six members of the Judicial Council, other than the Chief Justice
nominated by the Judicial Council, and
(c) Two lawyers, one of not less than ten and the other of not more than
five years’ standing, both of whom shall be nominated by the Ghana
Bar Association.

(2) The Rules of Court Committee shall, by constitutional instrument, make

rules and regulations for regulating the practice and procedure of all
Courts in Ghana.”

It is globally acknowledged that despite such mandatory language in a

constitutional provision, the failure of the Rules Committee to make such
procedure Rules does not debar a litigant from adopting any appropriate method
for approaching the court – see Edusei [No. 2] v Attorney-General (1998-99) SCG
LR 753. In Peters v Attorney-General (2002) 3 LRC 32 C. A, Trinidad and Tobago
at 657 de la Bestide CJ said:
“There is abundant authority for the proposition that where matters of pure
procedure have not been prescribed in relation to the exercise of a
jurisdiction conferred by statute, the court has an inherent jurisdiction to
approve or direct the procedure to be adopted. In Jaundoo v A-G of Guyana
[1971] AC 972 the
Government proposed to construct a road on a piece of land which was
privately owned without paying the landowner compensation. The
landowner applied to the High Court under a provision of the Constitution
which gave t he High Court jurisdiction to grant redress for infringement of
constitutional rights. The Constitution further provided for Parliament to
make provision with respect to the practice and procedure to be followed in
the High Court in relation to the exercise of this jurisdiction. Neither
Parliament nor the rule-making authority had made any provision in this
regard. The landowner non the less applied by way of originating motion to
6
the High Court naming the attorney General as respondent. The courts in
Guyana held that in the absence of any provision as to the means by which
proceedings of this kind were to be instituted, the High Court had no
jurisdiction to entertain the landowner’s application. The Privy Council,
however, held that in the absence of any provision prescribing the method of
access to the High Court, a person complaining of an infringement of his
constitutional rights was entitled to adopt any form of procedure by which
the High Court might be approached to invoke the exercise of any of its
powers. In delivering the judgment of the Privy Council, Lord Diplock said
([1971] AC 972 at 982)

“The clear intention of the Constitution that a person who alleges that his
fundamental rights are threatened should have uninhibited access to the High
Court is not to be defeated by any failure by Parliament or the rule-making
authority to make specific provision as to how that access is to be gained.’

x x x

The Privy Council held that an originating motion was an appropriate

procedure in the circumstances and proceeded to remit the matter to the
High Court of Guyana to deal with on its merits.

In Port Contractors v Seamen and Waterfront Workers’ Trade Union

(1972) 21 WIR 505 the Court of Appeal refused to hold that the power given
by statute to the Industrial Court to order the joinder of a party to
proceedings ‘on such terms and conditions as may be prescribed by rules
made by the court’ was stultified by the failure of the court to make any such
rules. Georges JA said ((1972) 21 WIR 505 at 510:

‘To hold that the power cannot be exercised in the absence of a

prescribed code of rules would mean that parties to disputes would be
deprived of the benefit of the exercise of the power because of the
court’s failure to produce a code- a circumstance over which they
could have no control. I do not think that this could have been
intended.’(e.s)

Again he said ((1972) 21 WIR 505 at 510):

‘I am satisfied also that the preparation of such a code was not a

condition precedent to the exercise of the power of joinder. The
7
is anchored in article 49 of the 1992 constitution, which, as far as relevant,
provides thus:
“49. Voting at elections and referenda
(1) At any public election or referendum, voting shall be by secret
ballot.

(2) Immediately after the close of the poll, the presiding officer shall,
in the presence of such of the candidates or their representatives
and their polling agents as are present, proceed to count, at that
polling station, the ballot papers of that station and record the
votes cast in favour of each candidate or question.

(3) The presiding officer, the candidates or their representatives and,

in the case of a referendum, the parties contesting or their agents
and the polling agents if any, shall then sign a declaration stating
(a) the polling station, and
(b) the number of votes cast in favour of each candidate or
question,

and the presiding officer shall, there and then, announce the results of
the voting at that polling station before communicating them to the
returning officer.”(e.s)

It is undoubtable that in some instances the declared results were not signed by the
presiding officer though the petitioners’ polling agents did sign. The crucial
question that has devastated this court is whether those results should be annulled.

To arrive at an answer to this question a number of considerations are relevant. To

some minds the sacred nature of the constitution and the clarity of article 49 so far
as the requirement of the presiding officer’s signature is concerned warrant the
unmitigated annulment of the votes involved. Quite clearly however this has not
been the approach of this court and its predecessors to constitutional construction
or application.

5
Clear violation of Constitutional Provisions

Article 157 of the constitution provides as follows:

“157. Rules of Court Committee
(1) There shall be a Rules of Court Committee which shall consist of

(a) the Chief Justice, who shall be Chairman,

(b) Six members of the Judicial Council, other than the Chief Justice
nominated by the Judicial Council, and
(c) Two lawyers, one of not less than ten and the other of not more than
five years’ standing, both of whom shall be nominated by the Ghana
Bar Association.

(2) The Rules of Court Committee shall, by constitutional instrument, make

rules and regulations for regulating the practice and procedure of all
Courts in Ghana.”

It is globally acknowledged that despite such mandatory language in a

constitutional provision, the failure of the Rules Committee to make such
procedure Rules does not debar a litigant from adopting any appropriate method
for approaching the court – see Edusei [No. 2] v Attorney-General (1998-99) SCG
LR 753. In Peters v Attorney-General (2002) 3 LRC 32 C. A, Trinidad and Tobago
at 657 de la Bestide CJ said:
“There is abundant authority for the proposition that where matters of pure
procedure have not been prescribed in relation to the exercise of a
jurisdiction conferred by statute, the court has an inherent jurisdiction to
approve or direct the procedure to be adopted. In Jaundoo v A-G of Guyana
[1971] AC 972 the
Government proposed to construct a road on a piece of land which was
privately owned without paying the landowner compensation. The
landowner applied to the High Court under a provision of the Constitution
which gave t he High Court jurisdiction to grant redress for infringement of
constitutional rights. The Constitution further provided for Parliament to
make provision with respect to the practice and procedure to be followed in
the High Court in relation to the exercise of this jurisdiction. Neither
Parliament nor the rule-making authority had made any provision in this
regard. The landowner non the less applied by way of originating motion to
6
the High Court naming the attorney General as respondent. The courts in
Guyana held that in the absence of any provision as to the means by which
proceedings of this kind were to be instituted, the High Court had no
jurisdiction to entertain the landowner’s application. The Privy Council,
however, held that in the absence of any provision prescribing the method of
access to the High Court, a person complaining of an infringement of his
constitutional rights was entitled to adopt any form of procedure by which
the High Court might be approached to invoke the exercise of any of its
powers. In delivering the judgment of the Privy Council, Lord Diplock said
([1971] AC 972 at 982)

“The clear intention of the Constitution that a person who alleges that his
fundamental rights are threatened should have uninhibited access to the High
Court is not to be defeated by any failure by Parliament or the rule-making
authority to make specific provision as to how that access is to be gained.’

x x x

The Privy Council held that an originating motion was an appropriate

procedure in the circumstances and proceeded to remit the matter to the
High Court of Guyana to deal with on its merits.

In Port Contractors v Seamen and Waterfront Workers’ Trade Union

(1972) 21 WIR 505 the Court of Appeal refused to hold that the power given
by statute to the Industrial Court to order the joinder of a party to
proceedings ‘on such terms and conditions as may be prescribed by rules
made by the court’ was stultified by the failure of the court to make any such
rules. Georges JA said ((1972) 21 WIR 505 at 510:

‘To hold that the power cannot be exercised in the absence of a

prescribed code of rules would mean that parties to disputes would be
deprived of the benefit of the exercise of the power because of the
court’s failure to produce a code- a circumstance over which they
could have no control. I do not think that this could have been
intended.’(e.s)

Again he said ((1972) 21 WIR 505 at 510):

‘I am satisfied also that the preparation of such a code was not a

condition precedent to the exercise of the power of joinder. The
7
 provision is directory- not mandatory. The failure to prepare rules
does not stultify the power conferred upon the court to exercise the
power of joinder.’” (e.s)

Again article 125(1) of the constitution provides thus:

“125. The judicial power of Ghana

(1) Justice emanates from the people and shall be administered in the
name of the Republic by the Judiciary which shall be independent
and subject only to this Constitution.” (e.s)

In the case of Tsatu-Tsikata v Attorney General (No. 1) (2001 – 2002) SCGLR 189
the majority of this court held that a criminal summons issued in the Fast Track
High Court in the name of the President of Ghana rather than the name of the
Republic contravened this provision and was therefore a nullity. This decision was
reversed on Review by the majority of this court in Attorney-General (No. 2) v
Tsatsu Tsikata (No. 2) (2001-2002) SCGLR 620. At 647 Acquah JSC (with the
concurrence of Wiredu C.J, Sophia Akuffo and Afreh JJSC) held poignantly as
follows:
“Constitutionality of the criminal summons
The applicant also complains about the majority’s holding that the criminal
summons served on the respondent was unconstitutional. Now it is true that
the criminal summons was inadvertently issued in the name of the President,
but what harm or threatened harm did that error cause the plaintiff? Did he
as a result of that error go to the castle to answer the call of the President,
or when he came to the court, did he find the President of the nation
presiding? The plaintiff came to court because he knew it was the court that
summoned him, and that whoever issued the criminal summons, obviously
made a mistake. The plaintiff suffered absolutely no harm by the error,
neither has he demonstrated any. That error was one obviously amendable
without prejudice to the rights of the plaintiff-respondent. And the
majority’s declaration on this error was nothing but an exercise in futility.”
(e.s)

8
General Demands of Justice and Constitutional Provisions

It is globally established that where a constitutional infraction causes no injustice

by way of injurious prejudice to a person, such infraction should not have an
invalidating effect. Thus in State v. Shikunga (1998) 2 LRC 82 the Namibian
Supreme Court was faced with a situation in which an appellant convicted of
murder and robbery contended that his said conviction was vitiated by the
reception in evidence of a confession statement in relation to which s.217(1) (b)
(ii) of the Criminal Procedure Act 1977 had placed on him the burden of proof of
its involuntariness contrary to article 12(1) (a) (f) of the Constitution of Namibia
1990. The court, after considering authorities from Canada, the United States of
America, Jamaica and Australia, held as per holding (2) of the Headnote thus:

“(2) In considering whether to quash a conviction resulting from a trial in

which a constitutional irregularity had occurred (in the instant case the
admission of a confession pursuant to an statutory provision found to be
unconstitutional), the court had to balance two conflicting considerations of
public policy, namely, that while manifestly guilty persons should be
convicted, the integrity of the judicial process should also be upheld. Before
the constitutional entrenchment of the rights in question, the test that had
evolved at common law in respect of non-constitutional irregularities was
such that the effect of an irregularity depended upon whether or not a failure
of justice had resulted from it. Under the common law, where an
irregularity was of so fundamental a nature as to require that the
proceedings in which it had occurred be regarded as fatally defective, any
resulting conviction had to be set aside. Where the irregularity was not of
such a fundamental nature, its effect would depend on the impact of the
irregularity on the verdict and whether the irregularity had in fact tainted
the verdict. It was considered that this common law test should apply with
equal force to cases where the irregularity complained of consisted of a
constitutional breach. In applying the test to the instant case, there was no
justification for interfering with the conviction as the conviction had not
been dependent on the confession, the guilt of the accused having been
proved by other reliable evidence.” (e.s)

9
Similarly in Armah Mensah v The Republic (1971)2 GLR it is stated in the
headnote as follows:
“The appellant was tried and convicted of stealing by a district court. When
the case was called for the first time the appellant applied for an
adjournment to secure the presence of his counsel. This was disallowed and
the appellant had therefore to defend himself in person. Consequently he
did not adequately put his defence to the prosecution witnesses. When,
however, he put forward that defence when he was himself giving evidence,
he was not cross-examined upon it. A statement made by the appellant,
exhibit B was admitted in evidence although the appellant objected to it on
the ground that it was not on caution, the trial magistrate holding that an
objection to admissibility can only be on the ground that the statement was
not made voluntarily. On appeal,
Held, allowing the appeal: (1) article 20 (2) (e) of the Constitution, 1969,
gives to every person charged with a criminal offence the right to defend
himself or to be represented by counsel of his choice. That choice is not the
tribunal’s and where the tribunal narrows the choice to one there is an
infringement of constitutional rights.
(2) In depriving the appellant of his rights under article 20 (2) (e) the trial
might have occasioned a miscarriage of justice in that the appellant was
denied an adequate defence and such defence as he put forward was rejected
upon legally indefensible grounds, namely (a) the trial court was not entitled
to disbelieve the appellant’s story on which he was not cross-examined, and
(b) exhibit B was admitted for the wrong reasons since involuntariness is not
the only ground upon which a statement may be excluded. Further it was
not certain whether the appellant’s conduct constituted a crime or was
general misconduct. The matter being in doubt, it should be resolved in
favour of the accused.” (e.s)

It is thus clear that Taylor J did not mechanically hold that a breach of article 20(2)
(e) of the 1969 constitution ipso facto vitiated the appellant’s conviction but that
such breach occasioned a miscarriage of justice warranting the quashing of the
conviction.

10
Purposive Construction of the Constitution and other statutes
In Republic v High Court Accra ex parte Attoney-General (Delta Foods case)
1998-99) SCGLR 595, even though the plaintiff instituted his action against the
Minister of Agriculture rather than the Attorney-General as required by article
88(5) of the constitution, this court dismissed the application to quash the
proceedings in the trial court, holding that the conduct of the defence had been
done by state attorneys.
In these circumstances this court per Acquah JSC at 610 stated poignantly thus:
“Clearly then, the rationale underlying the need to have the Attorney-General
named as the defendant in all civil actions against the state is satisfied in the
instant situation.” Accordingly this court concluded as stated in holding (1) of the
headnote thus:
“(1) the effect of article 88(5) of the 1992 Constitution, by directing that the
Attorney-General, and no other else, should be named the defendant in all
civil proceedings against the State meant that in the instant action by the
plaintiffs, the Attorney-General, and not the Minister of Food and
Agriculture, ought to have been made the defendant – not to assume liability
but as the nominal defendant. The failure to name the Attorney-General as a
defendant in a suit where he ought to be so named should not, depending
upon the circumstances in each case, be fatal, if the amendment could easily
be effected (as in the instant case) by substituting him for the wrong
defendant in the exercise of: (1) the court’s supervisory powers under article
132 of the constitution and section 5 of the Court’s Act, 1993 (act 459); (ii)
under the court’s general jurisdiction under article 129(4) namely, to
exercise all the powers, authority and jurisdiction vested in the court whose
judgment or conduct is the subject-matter of the suit before the court; or (iii)
in the exercise of the court’s powers in fitting situations and in the interest of
justice to amend the record by substituting a new defendant for the one sued.
”

It is quite clear that this court in that case applied the PURPOSIVE approach to
constitutional construction which has been enthroned in this court particularly in

11
the adulated era of Dr. Date-Bah JSC, as the dominant rule for the construction of
our constitution. Two very strong and recent decisions of this court based on the
purposive approach to constitutional interpretation should be beacon lights to
constitutional adjudication in this court. In Amegatcher v Attorney-General (No. 1)
& Others (2012) 1 SCGLR this court, had to revisit the starkly clear provisions of
article 88(5) of the constitution that
“ 88. The Attorney-General
x x x
(5) The Attorney-General shall be responsible for the institution and conduct
of all civil cases on behalf of the State; and all civil proceedings against the
State shall be instituted against the Attorney-General as defendant.”

This court unanimously held that to avoid the abuse of that power certain
institutions of state could sue and be sued independently of the Attorney-General.
Again in Ransford France (No. 3) v Electoral Commission & Attorney-General
(2012) SC GLR 705 this court was again confronted with the starkly plain
literalistic wording of article 296(c) which provides thus:
“296. Exercise of discretionary power
Where in this Constitution or in any other law discretionary power is vested
in any person or authority,
x x x
(c) where the person or authority is not a justice or other judicial
officer, there shall be published by constitutional instrument or
statutory instrument, Regulations that are not inconsistent with the
provisions of this Constitution or that other law to govern the
exercise of the discretionary power”

In that case, fastening hard on that provision is consolidation with article 23 and 51
the plaintiff contended as stated in the Headnote:

12
 “that upon a true and proper interpretation of articles 23, 51 and 296 (c) of
the 1992 Constitution, the Electoral Commission, the first defendant, in the
exercise of its functions and discretionary power in creating new
constituencies, was required to make to make by constitutional instrument,
regulations not inconsistent with the 1992 Constitution or any other law to
govern the exercise of its discretionary power. The plaintiff also sought an
order directed at the first defendant compelling the first defendant to, as
required by articles 51 and 296 (c) of the 1992 Constitution or any other law,
regulations to govern the exercise of its discretionary power to create new
constituencies including, in particular, the specification of the formula and
mechanism to be used in the creation of new constituencies.”

Dismissing the action this court stated per Dr. Date-Bah JSC, with fluorescent
ability that this Court will not sanction a construction of the constitution that would
lead to a nuclear melt-down of governmental functioning.

In Francis Jackson Developments Limited v. Hall (1951) 2 K.B. 488 C.A at 493-
494 Denning L. J (as he then was), delivering the judgment of the Court of Appeal
said thus:
“The result would be, therefore, that, by reason of Perkins’ application for
security of tenure, all of them, including Perkins himself, would lose their
security of tenure. We do not think that we should adopt a construction of
the Act which would produce a result so opposed to the intention of
parliament. If the literal interpretation of a statute leads to a result which

13
Indeed in DTA v Prime Minister (1996) 3 LRC 83 High Court, Namibia O’Linn J
presiding, vigorously dissented from the validity of a law prohibiting the opening
or inspection of sealed electoral material by any person except by order of court in
criminal proceedings, saying as stated in the Headnote that it was an absurdity that
a complainant be given the right to come to court only to be deprived of the
procedural right of discovery and inspection once there.

It appears that the petitioners rather belatedly, towards the end of the case, realised
the need for the adduction in evidence of such vital documents like the voters
registers, collation sheets, etc and tried to do so, sometimes with the indulgence of
this court, through cross-examination of Dr. Kwadwo Afari Gyan, Chairman of the
Electoral Commission and also through unsuccessful applications for leave to
serve on him notices to produce such documents.

It is felt, and the petitioners so submit, that the pink sheets do operate as estoppel
as to the facts therein contained and therefore, inter alia, extrinsic evidence is
inadmissible. The shortest answer to this is that the constitution being the supreme
law of the land doctrines of estoppels do not apply to constitutional litigation, see
Tuffuor v Attorney-General (1980) GLR 637 C.A (sitting as the Supreme Court),
New Patriotic Party v Attorney-General (1993-94) GLR I. do not think that it
makes a difference that such estoppels are contained in statutes, since such statutes
cannot derogate from the supremacy of the constitution. In any case estoppels do
not apply where the parties, as here, possessed common knowledge of the real facts
involved such that no party can mislead the other as to them, see Ghana Rubber
Products Ltd v. Criterion Company Ltd (1982-83) GLR 56 C.A, Odonkor v
Amartei (1992) 1 GLR 577 S.C and in Re Fianko Akotuah (Decd); Fianko v Djan
(2007-2008) SC GLR 170. I also need not waste time demonstrating that extrinsic
27
evidence, were estoppels applicable here, is admissible under the exceptions
thereto, see Dua v Afriyie (1971) 1 GLR 260 C.A and Koranteng II v Klu (1993-
94) 1 GLR 280 SC.

In the circumstances I do not think that the petitioners have established their
allegations of overvoting and voting without biometric verification, except to the
limited extent admitted by the Electoral Commission’s chairman, which cannot
impact much on the declared results.

POLLING AGENTS
It was sought to devalue the status of the polling agents to that of mere observers.
That is certainly unacceptable. If they were such passive attendants at an election
it is inconceivable that the constitution would have considered their signatures to
the results sheet significant enough to merit express constitutional requirement.
Before exiting the constitution to seek for other signs of their powers one is met
squarely with article 297 (c) as follows:
“297. Implied power
x x x
(c) where a power is conferred on a person or authority to do or enforce
the doing of an act or a thing, all such powers shall be deemed to be
also given as necessary to enable that person or authority to do or
enforce the doing of the act or thing;”

Also under the Public Elections Regulations, 2012 (C.I. 75) Regulation s.19, as far
as relevant is as follows:
“Polling agents
x x x

28
 (2) A candidate for presidential election may appoint one polling agent in
every polling station nationwide.

(3) An appointment under subregulations (1) and (2) is for the purpose of
detecting impersonation and multiple voting and certifying that the
poll was conducted in accordance with the laws and regulations
governing the conduct of elections.

(4) A presiding officer shall give a polling agent the necessary access to
enable the polling agent to observe election proceedings at a polling
station.

x x x

(6) The returning officer shall set a date on which the polling agents shall
appear before the returning officer to swear an oath to the effect that
the polling agent shall abide by the laws and regulations governing
the conduct of elections.

x x x

(8) The polling agent shall present the duplicate copy of the letter of
appointment to the presiding officer of the polling station to which the
agent is assigned on the day of the poll.

(9) Despite subregulation (5) a candidate may change an agent under

special circumstances and a new agent appointed by the candidate
shall swear an oath before the presiding officer in charge of the
polling station where that agent is assigned.” (e.s)

In Jayantha Adikari Egodawele v Commissioner of Elections (2002) 3 LRC 1, the

Sri Lanka Supreme Court per Fernando J commenting extensively on the important
role of polling agents in an electoral system which is very similar to that of Ghana,
said at 19 thus:
“Would potential voters not lose confidence in the ability of the law
enforcement authorities to protect them against unlawful acts and/ or to duly
investigate them if they did occur? Ballot-stuffing and driving out polling
agents go hand-in-hand with violence or the threat of violence – which, in
29
 turn, will have a deterrent effect on electors in the vicinity as well as on
those still in their homes. Impersonators will not have an easy task if there
are polling agents present who might challenge them (and demand
declarations under s.41). Obviously, polling agents are not chased away
because they are disliked, but because they hinder impersonation. Further,
the practice of seizing polling cards from electors must not be forgotten.
That is seldom an end in itself, because it does not prevent those electors
from voting. However, if those electors can somehow be deterred from
voting, and if there are no polling agents likely to object, a seized polling
card will be a passport to impersonation. Thus driving away polling agents
is a classic symptom of graver and more widespread electoral malpractices,
ranging from the intimidation of electors and the seizure of polling cards to
large-scale impersonation.” (e.s)

Continuing at 21 he said:

“Polling agents have a special role to play in a free, equal and secret poll,
and this court emphasised the need to ensure their security shortly before the
disputed poll. Their right to be present at the polling station is expressly
recognised by s.33, in the same breath as the right of election staff, the
police and candidates. Their duties commence from the time the empty
ballot box is sealed; and, inter alia, they have the right to challenge
suspected impersonators. An election, ultimately, is determined by the
number of ballots cast. It is the polling agents who play a leading part in
ensuring that only those entitled to vote do cast ballots. Chasing away
polling agents makes a poll cease to be equal.”(e.s)

Indeed in Mcwhirter v Platten (1969)1 All ER 172 serious discrepancies in the

declared results of the Enfield borough local elections were taken up by an election
agent called Harris and this led to the pursuit of criminal process. At 173 Lord
Parker CJ said:
“On 9th May 1968 local elections took place, amongst other places, in the
borough of Enfield. There are thirty wards, each returning two candidates,
and in one of those wards, West Ward with which we are concerned in the
present case, there is no doubt that the elected candidates wee Conservatives.
There were in addition two Labour candidates, two Liberal candidates and
two Independent candidates, the two Independents being Mrs. Bradbury,
who is one other appellants, and her husband, Mr. Bradbury. The count in
30
this ward took place in the presence of the election agents of the various
candidates. The matter with which we are concerned came to light as the
result of something that was said to Mr. Harris, who was the electing agent
of the two Independent candidates. The counting officer, or his deputy, told
Mr. Harris at the end of the count that broadly speaking, subject to checking,
the Conservative candidates had 2,600 votes each, the Labour candidates
170, and the two Liberal candidates had 140 votes. So far as Mr. Harris’s
candidates, Mr. And Mrs. Bradbury, were concerned, he was told that
subject to minor adjustment, Mr. Bradbury had got 525 and Mrs. Bradbury
519; in other words, they came second to the Conservatives and above the
Labour and Liberals.

To Mr. Harris’s amazement, when the formal announcement was made of

the result, he found that the two Labour candidates had been given votes
which exceeded those in respect of Mr. And Mrs. Bradbury, in other words
the Labour candidates had come second. As a result, the returning officer,
the respondent, looked into the matter, and he came across a very curious
state of affairs- a shocking state of affairs really- as the result of which he
felt constrained to make an announcement in the press, and on 24th May the
following announcement was made by the respondent:

“Following publication of the detailed results of the recent Borough

Elections my attention has been drawn to apparent arithmetical
discrepancies in the figures for [not merely West Ward, but Craig park
and High field Words] I have discussed these matters with the Agents
of the candidates primarily concerned and such enquiries as I have
been able to make, have regard to the provisions of Electoral Law
designed to preserve the secrecy of the ballot, lead me to the
following conclusions: (i) There has been no case in which there has
been a failure to include in the Count any votes cast, but the total
number of votes appears to have been miscalculated, with the result
that in two cases candidates as a whole appear to have been credited
with more votes than were actually cast. (ii) In the third case
candidates as a whole appear to have been credited with fewer votes
than the total votes cast but in such proportions as not to affect their
relative positions (iii) In no case does it seem that these matters affect
the result of any election. ...”” (e.s)

31
This shows that misrepresentations of electoral results do not necessarily invalidate
them when the real ascertainable truth can establish the contrary. So let it be with
our pink sheets herein.

Continuing at 175 he said:

“Let me say at once that there is no question whatever of an election

petition. The Conservatives were elected by a very large majority, and there
is no question of Mrs. Bradbury or any body else bringing an election
petition. Therefore the sole ground advanced, and it is advanced by Mr.
McWhirter and Mrs. Bradbury is the first one, namely that the order is
required for the purpose of instituting a prosecution for an offence in
relation to ballot papers. Both Mr. McWhirter and Mrs. Bradbury have
sworn that is the object, in their affidavits.” (e.s)
The certification of the results by the polling agents without any complaint at the
polling station or by evidence before this court shows that certain recordings on the
pink sheets should not readily be taken as detracting from the soundness of the
results declared but rather point to the direction of administrative errors which at
the worst, as demonstrated supra, can be corrected by the defaulting officials.
By analogy, though a company law case, I adopt substantially and mutatis
mutandis the reasoning in Marx v Estates and General Investments Ltd. (1976) I
WLR 380 as set out in the Headnote as follows:
“A merger agreement between C. Ltd. and the defendant company was
entered into, whereby the defendant company should acquire the share of the
former in return for approximately 5.500,000 new ordinary stock units in the
defendant company. The agreement was conditional on a resolution being
passed by a general meeting of the defendant company approving the merger
and increasing the authorised capital. A meeting was convened for June 12,
1975, for that purpose but, as a substantial number of shareholders objected
to the merger, the meeting was adjourned. The dissentients distributed
unstamped forms of proxy providing for the appointment of a proxy vote “at
the adjourned extraordinary general meeting of the company ... or any
further adjournment or adjournments thereof or at any new extraordinary
general meeting of the company during 1975” dealing with the matter. The

32
meeting was reconvened for July 16 and was adjourned to July 30. At that
meeting the resolution approving the merger was defeated on a show of
hands and a poll was demanded. The chairman accepted the votes tendered,
appointed scruitineers and adjourned the meeting until the result of the poll
could be declared. Article 66 of the company’s articles provided that no
objection should be raised as to the admissibility of any vote except at the
meeting at which it was tendered and “every vote not disallowed at such
meeting shall be valid for all purposes.

On August 4, when the count was almost concluded, objections were raised

33
 those transgressions. If on the other hand the transgressions of law by
the officials being admitted, the court sees that the effect of the
transgressions was such that the election was not really conducted
under the existing election laws, or it is open to reasonable doubt
whether the candidate who has been returned has really been elected
by the majority of persons voting in accordance with the laws in force
relating to elections, the court is then bound to declare the election
void. It appears to us that this is the view of the law which has
generally been recognised and acted upon by the tribunals which have
dealt with election matters.”

And again, the judgment in the case of Woodward v Sarsons (1875)

32L.T(N.s.) 867 at pp.870-871:

“... we are of opinion that the true statement is, that an election is to be
declared void by the common law applicable to Parliamentary
elections, if it was so conducted that the tribunal, which is asked to
avoid it, is satisfied, as a matter of fact, either that there was no real
electing at all, or that the election was not really conducted under the
subsisting election law: . . But if the tribunal should only be satisfied
that certain of such mishaps had occurred, but should not be satisfied
either that a majority had been, or that there was reason to believe that
a majority might have been prevented from electing the candidate they
preferred, then we think that the existence of such mishaps would not
entitle the tribunal to declare the election void by the common law of
Parliament.””

This is much the same as Canadian case of Opitz v. Wrzensnewskyj 2012 SCC 55-
2012-10- in which the court said as follows:
“The practical realities of election administration are such that imperfections
in the conduct of elections are inevitable ... A federal election is only
possible with the work of thousands of Canadians who are hired across the
country for a period of a few days or, in many cases, a single 14-hour day.
These workers perform many detailed tasks under difficult conditions. They
are required to apply multiple rules in a setting that is unfamiliar. Because
elections are not everyday occurrences, it is difficult to see how workers
44
 could get practical on-the-job experience... The current system of electoral
administration in Canada is not designed to achieve perfection, but to come
as close to the ideal of enfranchising all entitled voters as possible. Since
the system and the Act are not designed for certainty alone, courts cannot
demand perfect certainty. Rather, courts must be concerned with the
integrity of the electoral system. This overarching concern informs our
interpretation of the phrase “irregularities ...that affected the result.”
(Rothsterin and Moldaver JJ).”

The petitioners through their counsel’s written Address, at p.88 rely on Besigye
Kuza v Museveni Yoweri Kaguta and Election Commission [2001] UGSC 3
Judgment dated 20th April 2001 quoted Odoki CJ of Uganda saying:
“From the authorities I have cited there is a general trend towards taking a
liberal approach in dealing with defective affidavits. This is in line with the
constitutional directive enacted in article 126 of the Constitution that the
courts should administer substantive justice without undue regard to
technicalities...”

At p. 89 counsel also submitted as follows:

“In the Nigerian case of Dr. Chris Nwebueze Ngige vrs Mr. Peter Obi and
436 Others [2006] Volume 18 WRN 33, it was held by the Court of Appeal
at holding 30 that, election petitions are by their nature peculiar from the
point of view of public policy. It is, therefore, the duty of the court to
endeavour to hear them without allowing technicalities to unduly fetter their
jurisdiction.”

Consequently the petitioners seek equity from this court (which they deny to the
pink sheets) as follows:
“It is therefore submitted that since the affidavit of the 2nd petitioner to
which the pink sheets were annexed was duly executed and sworn to, the
unavoidable errors of pink sheet exhibits, where the authenticity is not

45
 disputed by the respondents, ought to be treated and waived as mere
irregularity, so that the said pink sheets exhibited which are already in
evidence can be considered and evaluated in the interest of substantial
justice.”

CONCLUSION

In modern times the courts do not apply or enforce the words of statutes but their
objects purposes and spirit or core values. Our constitution incorporates its spirit
as shown for example, in article 17(4) (d). This means that it should not be applied
to satisfy its letter where its spirit dissents from such an application. Thus in Black
v Value Capital Ltd.(1975) 1 WLR 6 Goulding J held as stated in headnote 2 thus:
“That although he plaintiffs’ proposed amendments could technically be
brought under paragraph (f) or (i) and (j) of Order 11, r.1(1), they should
not be allowed since to do so would be an application of the letter but not of
the spirit of the rule, in that it would allow the trial in England of a dispute
between foreigners merely because it concerned money in the hands of
English bankers whose only interest therein was their proper bank charges,
or because the agreements were expressed to have been executed in London,
although the disputant companies were neither incorporated, resident nor
trading in England, and the agreements were expressly to be governed by
and enforced in accordance with Bahamian law (post, pp. 15G-16A); that in
all the circumstances the only court that could effectively exercise
jurisdiction was the Bahamian court which could act in personam against
PRL and VCL and compel the use of their names and seals, and which was
already seised of the winding up petitions, and leave to amend would
therefore be refused (post, p. 16D-F)”

The Mischief rule of construction is much the same as the spirit of a statute. In
Catherine v Akufo-Addo (1984-86) 1 GLR 96 C.A at 104 Mensa Boison J.A in
delivering the judgment of the Court of Appeal said:

46
On page 35 of the proceedings of the 3rd day of June, 2013 his evidence on the
issue of overvoting was as follows:
“Q: In situations like that, can you tell the court whether there is a
procedure that should be followed.
A: The annulment or you are talking about when there was an excess
Q: Yes
A: If they had been reported to us, that would have been a different issue.
We would have taken certain steps to ascertain whether in fact those
things constitute excess. There are all kinds of things that you would
do, because we are dealing with a very sensitive situation so you must
be sure of what you are doing. It is gone over by the claim one and
may be in some places the votes involved are huge. So what do we do
to make sure whether it is really gone over by 1. I will first carry out
a very careful examination of the pink sheet, that will be the starting
point, a very careful analyses of the pink sheet. You have seen that
somebody says that I was given 4 ballot papers when in fact he was
given 325 and in some cases when you check the difference, there
could be a mistake in the addition of the figures. So that is a starting
point check whether the pink sheets have been properly executed. In
addition to that as the returning officer, I will recheck whether all
ballots in contention fall within the serial range of the ballots that
were allocated to the station. I would also cause are check of whether
every ballot paper in contention has the validating stamp of the
polling station. And because our law says that when you vote your
name must be ticked I would cause a count.
Q: Ticked where.
24
 A: In the register. Your name must be ticked in the register. I would
cause a count of the ticks in the register and all these things would
have to be done before I take a decision on what to do.”

Voting without Biometric Verification

The evidence clearly establishes that the 2012 election started on 7/12/2012 and
due to difficulties with the biometric verification machines, continued on
8/12/2012. The evidence also shows that form 1C which was meant for those
voters who had biometric voter ID cards but their names were not on the register,
was not taken to the polling stations due to opposition from the political parties. In
consequence form C3 was not to be filled but a few presiding officers still filled it
in error. Dr. Afari Gyan’s conflicting evidence as to the date of the printing of the
pink sheets and the instructions concerning form C3 is such a technical error of
recollection that not much weight should be attached to it.
The plaint about voting without biometric verification cannot, in addition to the
foregoing reasons, therefore hold in the absence of some other contrary evidence.

The pink sheets contained errors of omission of e.g. proxy votes, blanks,
repetitions, wrong grammatical renditions, etc. Indeed Dr. Bawumia admitted
under cross-examination that the pink sheets cannot alone supply answer to issues
arising from them, in all situations.

The pink sheet or its equivalent in other jurisdictions has been judicially regarded
as the primary record of an election. But no one has given it a conclusive effect.
Neither the constitution nor any other statute, substantive or subsidiary has
accorded the pink sheet any particular status. I would not infer from the
constitution and Electoral laws that its reputation as the primary record of the
25
election means anything more than that it is the ready and basic document to resort
to, for a start, when one wants to ascertain how the elections fared in a particular
polling station.

I am not aware of any judicial University that has awarded or conferred a graduate
or doctoral degree on the pink sheet. Some of the Nigerian authorities filed by the
petitioners are in point. Thus in INEC v. Oshiomele (2008) CLR 11 (a) S.C the
Independent National Electoral Commission of Nigeria (NEC) was subpoenaed by
the petitioners and did produce inter alia “forms, voters registers, ballot papers and
records of counting and sorting of the ballot papers” in the challenged election,
and the Supreme Court held that such documents largely established their case in
addition to oral evidence.

Again in I.N.E.C v Ray (2004) 14 NWLR (Pt. 892) the Court of Appeal (Enugu
Judicial Division) held as per the headnote (4) as follows:
“ELECTION PETITION –ALLEGATION OF HOLDING OF
ELECTION:
How allegation that election took place in a particular ward or Constituency
can be proved.
“...a party who alleges that election took place in a particular ward or
Constituency is required, in order to prove that allegation; ...to call at least
one person who voted at any of the polling units in the two wards whose
registration card would show the stamp of the presiding officer and the date
confirming that he had voted at the election. In the alternative, the presiding
officer or any other official of INEC who participated in the conduct of the
election, could give evidence to that effect and support that evidence by the
production of the register of voters and other official documents of INEC
prepared, signed, and dated by him, showing that election had taken place in
all or some of the units of the wards concerned. Per OGUNBIYI, J. CA”

26
Indeed in DTA v Prime Minister (1996) 3 LRC 83 High Court, Namibia O’Linn J
presiding, vigorously dissented from the validity of a law prohibiting the opening
or inspection of sealed electoral material by any person except by order of court in
criminal proceedings, saying as stated in the Headnote that it was an absurdity that
a complainant be given the right to come to court only to be deprived of the
procedural right of discovery and inspection once there.

It appears that the petitioners rather belatedly, towards the end of the case, realised
the need for the adduction in evidence of such vital documents like the voters
registers, collation sheets, etc and tried to do so, sometimes with the indulgence of
this court, through cross-examination of Dr. Kwadwo Afari Gyan, Chairman of the
Electoral Commission and also through unsuccessful applications for leave to
serve on him notices to produce such documents.

It is felt, and the petitioners so submit, that the pink sheets do operate as estoppel
as to the facts therein contained and therefore, inter alia, extrinsic evidence is
inadmissible. The shortest answer to this is that the constitution being the supreme
law of the land doctrines of estoppels do not apply to constitutional litigation, see
Tuffuor v Attorney-General (1980) GLR 637 C.A (sitting as the Supreme Court),
New Patriotic Party v Attorney-General (1993-94) GLR I. do not think that it
makes a difference that such estoppels are contained in statutes, since such statutes
cannot derogate from the supremacy of the constitution. In any case estoppels do
not apply where the parties, as here, possessed common knowledge of the real facts
involved such that no party can mislead the other as to them, see Ghana Rubber
Products Ltd v. Criterion Company Ltd (1982-83) GLR 56 C.A, Odonkor v
Amartei (1992) 1 GLR 577 S.C and in Re Fianko Akotuah (Decd); Fianko v Djan
(2007-2008) SC GLR 170. I also need not waste time demonstrating that extrinsic
27
evidence, were estoppels applicable here, is admissible under the exceptions
thereto, see Dua v Afriyie (1971) 1 GLR 260 C.A and Koranteng II v Klu (1993-
94) 1 GLR 280 SC.

In the circumstances I do not think that the petitioners have established their
allegations of overvoting and voting without biometric verification, except to the
limited extent admitted by the Electoral Commission’s chairman, which cannot
impact much on the declared results.

POLLING AGENTS
It was sought to devalue the status of the polling agents to that of mere observers.
That is certainly unacceptable. If they were such passive attendants at an election
it is inconceivable that the constitution would have considered their signatures to
the results sheet significant enough to merit express constitutional requirement.
Before exiting the constitution to seek for other signs of their powers one is met
squarely with article 297 (c) as follows:
“297. Implied power
x x x
(c) where a power is conferred on a person or authority to do or enforce
the doing of an act or a thing, all such powers shall be deemed to be
also given as necessary to enable that person or authority to do or
enforce the doing of the act or thing;”

Also under the Public Elections Regulations, 2012 (C.I. 75) Regulation s.19, as far
as relevant is as follows:
“Polling agents
x x x

28
 (2) A candidate for presidential election may appoint one polling agent in
every polling station nationwide.

(3) An appointment under subregulations (1) and (2) is for the purpose of
detecting impersonation and multiple voting and certifying that the
poll was conducted in accordance with the laws and regulations
governing the conduct of elections.

(4) A presiding officer shall give a polling agent the necessary access to
enable the polling agent to observe election proceedings at a polling
station.

x x x

(6) The returning officer shall set a date on which the polling agents shall
appear before the returning officer to swear an oath to the effect that
the polling agent shall abide by the laws and regulations governing
the conduct of elections.

x x x

(8) The polling agent shall present the duplicate copy of the letter of
appointment to the presiding officer of the polling station to which the
agent is assigned on the day of the poll.

(9) Despite subregulation (5) a candidate may change an agent under

special circumstances and a new agent appointed by the candidate
shall swear an oath before the presiding officer in charge of the
polling station where that agent is assigned.” (e.s)

In Jayantha Adikari Egodawele v Commissioner of Elections (2002) 3 LRC 1, the

Sri Lanka Supreme Court per Fernando J commenting extensively on the important
role of polling agents in an electoral system which is very similar to that of Ghana,
said at 19 thus:
“Would potential voters not lose confidence in the ability of the law
enforcement authorities to protect them against unlawful acts and/ or to duly
investigate them if they did occur? Ballot-stuffing and driving out polling
agents go hand-in-hand with violence or the threat of violence – which, in
29
 turn, will have a deterrent effect on electors in the vicinity as well as on
those still in their homes. Impersonators will not have an easy task if there
are polling agents present who might challenge them (and demand
declarations under s.41). Obviously, polling agents are not chased away
because they are disliked, but because they hinder impersonation. Further,
the practice of seizing polling cards from electors must not be forgotten.
That is seldom an end in itself, because it does not prevent those electors
from voting. However, if those electors can somehow be deterred from
voting, and if there are no polling agents likely to object, a seized polling
card will be a passport to impersonation. Thus driving away polling agents
is a classic symptom of graver and more widespread electoral malpractices,
ranging from the intimidation of electors and the seizure of polling cards to
large-scale impersonation.” (e.s)

Continuing at 21 he said:

“Polling agents have a special role to play in a free, equal and secret poll,
and this court emphasised the need to ensure their security shortly before the
disputed poll. Their right to be present at the polling station is expressly
recognised by s.33, in the same breath as the right of election staff, the
police and candidates. Their duties commence from the time the empty
ballot box is sealed; and, inter alia, they have the right to challenge
suspected impersonators. An election, ultimately, is determined by the
number of ballots cast. It is the polling agents who play a leading part in
ensuring that only those entitled to vote do cast ballots. Chasing away
polling agents makes a poll cease to be equal.”(e.s)

Indeed in Mcwhirter v Platten (1969)1 All ER 172 serious discrepancies in the

declared results of the Enfield borough local elections were taken up by an election
agent called Harris and this led to the pursuit of criminal process. At 173 Lord
Parker CJ said:
“On 9th May 1968 local elections took place, amongst other places, in the
borough of Enfield. There are thirty wards, each returning two candidates,
and in one of those wards, West Ward with which we are concerned in the
present case, there is no doubt that the elected candidates wee Conservatives.
There were in addition two Labour candidates, two Liberal candidates and
two Independent candidates, the two Independents being Mrs. Bradbury,
who is one other appellants, and her husband, Mr. Bradbury. The count in
30
this ward took place in the presence of the election agents of the various
candidates. The matter with which we are concerned came to light as the
result of something that was said to Mr. Harris, who was the electing agent
of the two Independent candidates. The counting officer, or his deputy, told
Mr. Harris at the end of the count that broadly speaking, subject to checking,
the Conservative candidates had 2,600 votes each, the Labour candidates
170, and the two Liberal candidates had 140 votes. So far as Mr. Harris’s
candidates, Mr. And Mrs. Bradbury, were concerned, he was told that
subject to minor adjustment, Mr. Bradbury had got 525 and Mrs. Bradbury
519; in other words, they came second to the Conservatives and above the
Labour and Liberals.

To Mr. Harris’s amazement, when the formal announcement was made of

the result, he found that the two Labour candidates had been given votes
which exceeded those in respect of Mr. And Mrs. Bradbury, in other words
the Labour candidates had come second. As a result, the returning officer,
the respondent, looked into the matter, and he came across a very curious
state of affairs- a shocking state of affairs really- as the result of which he
felt constrained to make an announcement in the press, and on 24th May the
following announcement was made by the respondent:

“Following publication of the detailed results of the recent Borough

Elections my attention has been drawn to apparent arithmetical
discrepancies in the figures for [not merely West Ward, but Craig park
and High field Words] I have discussed these matters with the Agents
of the candidates primarily concerned and such enquiries as I have
been able to make, have regard to the provisions of Electoral Law
designed to preserve the secrecy of the ballot, lead me to the
following conclusions: (i) There has been no case in which there has
been a failure to include in the Count any votes cast, but the total
number of votes appears to have been miscalculated, with the result
that in two cases candidates as a whole appear to have been credited
with more votes than were actually cast. (ii) In the third case
candidates as a whole appear to have been credited with fewer votes
than the total votes cast but in such proportions as not to affect their
relative positions (iii) In no case does it seem that these matters affect
the result of any election. ...”” (e.s)

31
This shows that misrepresentations of electoral results do not necessarily invalidate
them when the real ascertainable truth can establish the contrary. So let it be with
our pink sheets herein.

Continuing at 175 he said:

“Let me say at once that there is no question whatever of an election

petition. The Conservatives were elected by a very large majority, and there
is no question of Mrs. Bradbury or any body else bringing an election
petition. Therefore the sole ground advanced, and it is advanced by Mr.
McWhirter and Mrs. Bradbury is the first one, namely that the order is
required for the purpose of instituting a prosecution for an offence in
relation to ballot papers. Both Mr. McWhirter and Mrs. Bradbury have
sworn that is the object, in their affidavits.” (e.s)
The certification of the results by the polling agents without any complaint at the
polling station or by evidence before this court shows that certain recordings on the
pink sheets should not readily be taken as detracting from the soundness of the
results declared but rather point to the direction of administrative errors which at
the worst, as demonstrated supra, can be corrected by the defaulting officials.
By analogy, though a company law case, I adopt substantially and mutatis
mutandis the reasoning in Marx v Estates and General Investments Ltd. (1976) I
WLR 380 as set out in the Headnote as follows:
“A merger agreement between C. Ltd. and the defendant company was
entered into, whereby the defendant company should acquire the share of the
former in return for approximately 5.500,000 new ordinary stock units in the
defendant company. The agreement was conditional on a resolution being
passed by a general meeting of the defendant company approving the merger
and increasing the authorised capital. A meeting was convened for June 12,
1975, for that purpose but, as a substantial number of shareholders objected
to the merger, the meeting was adjourned. The dissentients distributed
unstamped forms of proxy providing for the appointment of a proxy vote “at
the adjourned extraordinary general meeting of the company ... or any
further adjournment or adjournments thereof or at any new extraordinary
general meeting of the company during 1975” dealing with the matter. The

32
meeting was reconvened for July 16 and was adjourned to July 30. At that
meeting the resolution approving the merger was defeated on a show of
hands and a poll was demanded. The chairman accepted the votes tendered,
appointed scruitineers and adjourned the meeting until the result of the poll
could be declared. Article 66 of the company’s articles provided that no
objection should be raised as to the admissibility of any vote except at the
meeting at which it was tendered and “every vote not disallowed at such
meeting shall be valid for all purposes.

On August 4, when the count was almost concluded, objections were raised

33
It is not difficult to interpret the meaning of these provisions. They mean that the
persons named therein, namely the presiding officer, the candidates or their
representatives and the counting agents, shall sign the declaration form stating
the particularized items. There was no mention made of ‘polling assistants’ in the
two provisions let alone requiring them to sign the declaration form. If therefore
they did not sign the forms they committed no irregularity; none could therefore
use that failure to found or support a case of irregularity or violation of any law.
But the presiding officer was not relieved from the duty to sign the declaration
forms; it was a mandatory duty cast on them by the constitutional and statutory
provisions governing elections in the country; the legitimate inference is that
failure by the presiding officer to sign the declaration form is an irregularity which
cannot be excused or waived on the grounds that the pressure of time, prevailing
atmospheric condition, etc, etc, did not simply allow or permit them to sign the
forms and thereby comply with the constitutional duty.

The duty cast on the presiding officers to sign the declaration was couched in
mandatory terms and deserves obedience and not meant to be disobeyed. An
election much more so, Presidential Elections, are serious matters governed by
well laid rules to preserve sanctity and integrity of the elections, especially where
a specific duty is imposed on election officials. A breach of any of those duties
meant the integrity of the election was compromised and ultimately affected the
exercise of the right to vote as well as jeopardizing the sovereign will of the
people.

Because of this, I am unable to accept the alibi put up by the respondents, like
pressure of work, nature of carbon paper making the signatures look faint
through over use, and pressing the pen too often, too hard.

In paragraph 47 of the affidavit, the petitioners deposed that:

“47. There were 66 polling stations where violations of constitutional and

statutory violations, malpractices and irregularities in the nature of (i) over
voting,( ii) voting without biometric verification, (iii) same serial numbers on pink
sheets with different results and( iv) absence of signatures of the presiding officers
and their assistants occurred and can be found on the same pink sheets. The
68
combined effect of these infractions completely vitiated 32,469 votes cast in these
polling stations. Attached herewith and marked as Exhibit MB-F, MB-F-1 to MB-F-
65 are photocopies …..”

Paragraph 58 of the affidavit of Dr. Bawumia read:

“58 That there were 310 polling stations where exclusive instances of
Constitutional and statutory violations in the nature of: absence of signatures of
the presiding officers or their assistants on pink sheets. The combined effect of
these infractions vitiated 112,754 votes. Attached herewith and marked as
Exhibits MB-S to MB-S-1 to MB-S 309 are photocopies of pink sheets of the polling
stations where these infractions occurred.”

These paragraphs of the affidavit spoke of the same thing, namely the absence of
signatures of the presiding officers on the face of the pink sheets; paragraph 58
went on to show where these infractions occurred and also to provide the
exhibits affected pink sheet by pink sheet as well as the number of votes vitiated
thereby.

Article 49 (3) of the Constitution read:

“ (3) The presiding officer, the candidates or their representatives and, in the case
of a referendum, the parties contesting or their agents and the polling agents if
any, shall then sign a declaration stating

(a) The polling station, and

(b) The number of votes cast in favor of each candidate or question ,

and the presiding officer shall there and then announce the results of the voting at
that polling station before communicating them to the returning officer,”

The Regulation referred to also read:

“36 (2) The presiding officer, the candidates, or their representatives and the
counting agent shall then sign a declaration stating

(a) The name of the polling station;

(b) The total number of persons entitled to vote at that polling station;
69
 (c) The number of votes cast in favor of each candidate; and
(d) The total number of rejected ballots.”

I shall return to this ground again in this delivery for the issues involved are of
prime importance in conducting elections in the country. For the meantime it is
sufficient to say that the real meaning of the combined effect of these
constitutional and statutory legal provisions, is that they cast a mandatory duty
on the presiding officer, the candidates or their representatives are to sign the
declaration form before the presiding officer announces the results at the polling
station. Signing a document like a declaration means the person wrote it or part
of it, that he agrees with what it says, or that it is genuine; see the Oxford
Advanced Learner’s Dictionary, p 1366. The authors of the pink sheets, the
framers of the constitution and the legislature really meant to do a serious
business when they made the law and couched it in these mandatory terms. By
the use of the word ‘shall’, the legislature intended that the duty to do the act
specified and cast on the presiding officer must be honored in obedience than the
letter.

I am fortified in this view because of the interpretation given of the word in

our Interpretation Act, 2009, (Act 792) which provided that:

“27 ‘Shall’ and ‘may

In an enactment made after the passing of this Act, ‘shall’, shall be construed as
imperative and ‘may’ as permissive and empowering.”

‘Shall’ connotes an obligation, or mandatory duty conveying a command bereft of

a discretion: see Blacks Law Dictionary (supra) at page 1407.

The unreported judgments of this court in Suit No. J1/23/2013, Martin Amidu v
Attorney General & 2 ors 2013 unrep. dated 21st June 2013, SC; (commonly called
the Isofoton case.); Writ No. Writ No. J1/15/2013 Martin Amidu v Attorney-
General, Waterville and Woyome (the Woyome case), S.C. unrep. 14TH June 2013,
SC; Attorney-General v Faroe Atlantic Co. Ltd. [2005-2006] SCGLR 271 support the
proposition that where an enactment uses the word ‘shall’, it means mandatory
or imperative.
70
In consideration of this well known interpretation, when the petitioners alleged
these violations of the constitution and enactments and went on to provide
evidence in support by way of the Exhibit MB-S series, the onus shifted by law on
to the respondents to lead evidence in rebuttal or to admit the allegations.

The second respondent deposed to an affidavit in response to this allegation that

when it received the allegation of no signature by the presiding officer or his
assistant on the pink sheet it proceeded to examine them (pink sheets) and found
that out of the 2009 pink sheets alleged by the petitioners that were not signed,
1099 were in fact signed by the Presiding Officer at the polling station, or at the
instance of the Returning Officer at the Collation Center, 905 were unsigned
representing 3.5% of the total number of pink sheets nationwide.

When Dr. Kwadwo Afari Gyan, the Chairman of the Electoral Commission, who
gave evidence for and on behalf the Commission second respondent, was cross
examined on his evidence he said there were instances where some pink sheets in
addition to the 905 admitted not to have been signed, there more unsigned pink
sheet, but which were signed at the collation center at the instance of the
Returning officer. Mr. Johnson Asiedu Nketia made a similar admission that
presiding officers did not sign the pink sheets as was required of them by the law.

If it was accepted that the law cast a mandatory duty on the presiding officer to
sign the pink sheet, then he could not neglect to perform that act; excuses like the
officer had a lot of work to do that day, and signing the pink sheet was only one of
them, the prevailing weather, the crowd at the polling station shouting ‘tsoo boi’
(see the evidence of Asiedu Nketia), could not be good enough reasons to relive
him from discharging his legal duty. Considering the importance the nation
attaches to the exercise of conducting a national election, sustaining the integrity
of the election should be zealously guarded; this could best be done by the
presiding officer in charge of affairs at the polling station appending his signature
to the declaration to testify that the events on the face of the pink sheet took
place there.

In Presidential elections, a polling station is but a microcosm of the country at

large where the whole country is a one constituency. A presiding officer at a
71
polling station in a constituency is like a returning officer for the whole country in
Presidential elections where there is only one constituency. If the presiding officer
at a polling station shall fail to sign a declaration form at the end of a poll what
shall it mean? Can the Returning officer in a Presidential election refuse to sign
the declaration form and announce the results of the election and still hope it will
still be accepted as valid? If the answer is in the negative, then it is to the same
effect where a presiding officer fails to sign the declaration of results portion of a
pink sheet at a polling station and so do I hold.

I hold in my concluding comments on this ground, that the failure to sign the pink
sheet was a monumental irregularity unmitigated by any circumstances. I am
further fortified in this view by the observation that in establishing the duty for
presiding officers to sign pink sheets before proceeding to declare the results of
the polls at the polling station, Article 49 (3) of the Constitution does not merely
constitute a mandatory constitutional duty on presiding officers to do so prior to
announcing the election results, but it is also one of the entrenched provisions of
the Constitution. In the face of the full force of this entrenched constitutional
requirement, I am unable to make any exception to save the pink sheets
impugned by the omission of the presiding officers on the basis of the
explanations offered by the respondents. I am emboldened to come to this
conclusion following upon the holding that:“the Ghana Supreme Court has
recognized the concept of the spirit of the constitution as a tool of constitutional
interpretation……to ensure that Ghana succeeds in her fourth attempt at
democratic and constitutional system of government, both the government and
the people should observe not only the written provision of the constitution but
it’s spirit as well.” See The Law of Interpretation in Ghana, Exposition and Critique
by S.Y.Bimpong-Buta Chapter 10 p373.

All things considered, I am of the candid opinion that the failure by the presiding
officer to sign the pink sheet before announcing the results constituted an
omission to perform and a breach of his constitutional duty. It vitiated the votes
cast at the polling station, a more monstrous irregularity no one can imagine.

72
I may remark that it was as unpardonable as it was inexcusable that presiding
officers should fail to sign declaration portion of pink sheets they worked with on
the polling day from the beginning to the end of polls on the election day.

Based on the foregoing discussion under this head of irregularities, I find that all
votes cast and declared during the 2012 presidential elections which involved
pink sheets not signed by presiding officers or their assistants are to be nullified
and I so declare.

C. DUPLICATE SERIAL NUMBERS AND POLLING STATION CODES

The petitioners deposed in their grounds for the petition that:

“40. There were widespread instances where different results were strangely
recorded on the pink sheets in respect of polling stations bearing the same polling
station codes, when by the second respondents established practice each polling
station was assigned a unique code in order to avoid confusing one polling station
with another which could not be explained by a reference to special voting.”

In their affidavit in affidavit filed pursuant to the court directions and

memorandum of issues and mode of trial dated 2nd April 2013, the second
petitioner deposed in paragraph that:

“40. That exclusive … polling station codes were found in 37 polling stations in 34
of these stations, representing 91% of this irregularity together with i) over
voting, ii)voting without biometric verification and iii) same serial number of
different pink sheets with different … Only in 3 polling stations did the irregularity
occur without other violations, irregularities or malpractices.”

It was further deposed on the grounds of the petition that:

“59 That there were polling stations where exclusive instances of irregularities
and malpractices of polling stations with some polling station codes and different
results occurred and can be found …

73
The respondents agreed that what differentiates one polling station from the
other is the polling station code. Dr. Afari-Gyang said at page 12 of the record of
proceedings of 31 May 2013, that:

“the code is unique; first in the sense that no two polling stations ever have the
same code number or code. It is also unique in the sense that the code is
consciously crafted to contain information that directs you the location of the
polling station. And the system is alpha-numeric, that is to say, it combines the
letters of the alphabets and numbers, and the system is a letter followed by 6
digits and it may end or may not end with another letter.”

a.) The petitioners also complained of the use of serial numbers for
different polling stations with different results. They stated this
irregularity affected …polling stations and … votes. I have considered the
defence to this allegation that there is no constitutional or any other
statutory backing for the serial numbers, which were not generated by
the EC for any purpose except that they were created by the printers
and randomly assigned to the constituencies and onward to the polling
stations. In the absence of any such constitutional and statutory
foundations, their use as alleged by the petitioners did not amount to
any breaches such as will attract the draconian effect of being used to
annul votes affected thereby.

In the result I hold they could not be used to annul the votes in the polling
stations specified. I rather dismiss the claim based on that ground, just as my
brethren have done.

D. OVER VOTING AT POLLING STATIONS

In paragraph 44 of the affidavit filed by the petitioners (infra), they alleged over
voting took place in over 320 polling stations. I must observe that the electoral
laws of the land, the Constitution itself or any other enactment, did not define the
term. The petitioners pleaded over voting as an irregularity in the conduct of the
elections and said it tainted the results and invited the court to so find and annul

74
the original pink sheets, which are the official primary records of the election. The
pink sheets being duplicates, they are as good as the originals, unless their
authenticity is successfully challenged.

There being no such challenge, the fact that Dr. Bawumia was not present at any
of the polling stations from whose results were captured on the pink sheets, does
not detract from the admissibility of his testimony in respect of the pink sheets.
To put it bluntly, as I saw and heard Dr. Bawumia as he gave his evidence on oath
in the witness box my impression about him was that he was a witness of truth.
He frankly admitted salient facts and answered questions put to him freely and
unhesitatingly.

I like to consider another point raised by the respondents which I think bordered
on the credibility of Dr. Bawumia. The first was that he said polling agents were
mere observers at the polling stations. I think he underestimated the role of
polling agents at elections; they were more than that. Polling agents are
appointed and assigned specific functions to perform at elections under C.I.75.
They act under an oath and when they breach their oaths or perform their duties
willfully, they suffer penalties for that; (see Regulation 19 of the Public Elections
Regulations, 2012, C.I.75).

Secondly, the respondents submitted nobody complained at the polling stations

that infractions took place there during the voting and the polling agents signed
the pink sheets to demonstrate their approval at events at the polling stations.
Studying the evidence closely, it was clear nobody complained against anything at
the polling stations, but I do not infer from that that the petitioners had no basis
to complain. As Dr Bawumia said the polling agents only signed to acknowledge
what took place there but not as to its legality or that everything was done
regularly.

Where it is shown that relevant legislation and regulations governing elections

were breached in the course of voting, the fact that polling agents did or did not
complain against the events or signed pink sheets would not invalidate that which
was invalid, or regularize that which was irregular. The result would be that the
evidence on record will be evaluated for its probative value to be assessed.
86
 It was said in the KPMG report that paragraph 44 of the affidavit of the
second petitioner alleged 320 pink sheets were filed but 318 Exhibits were
counted in the Exhibit MB-C- series: see Appendix A.1: Report Summary of Pink
Sheet Count: see Page 5 of the KPMG Report. Appendix A.2.1 contained the
details of data captured for the MB-C Series of exhibits in the paragraph stated.
The summary stated clearly there was a difference of two pink sheets in support
of the allegation of over-voting.

The respondents did not impugn that these were documents in support of
allegations of over voting. In the law of evidence, documentary evidence prevails
over oral evidence: Fosua & Adu-Poku v Adu-Poku Mensah [2009] SCGLR 310.
The reason is not far to see. Documentary evidence if not challenged, is often the
best proof of matters in controversy. In fact it should prevail over oral evidence.

I have read the evidence of the second respondent several times over and on
some occasions, he impressed me as telling the truth; one was when he readily
conceded that working with a large number of personnel who were trained over a
very short period of time, blunders were bound to occur; blunders did in fact
occur which he explained was more of arithmetical errors than deliberate or out
of mischief. But it was on the basis of these errors that he declared the results.
These errors he also labeled ‘excess votes’. So ‘arithmetical errors’, ‘trans-
positional errors’, ‘excess votes’ and the result is over-voting. Mr Asiedu Nketia
even spoke of ‘unidentified materials in the box’ whatever he meant by that. My
observation is that in these proceedings no party had an exclusive monopoly over
‘arithmetical challenges’ or any other such challenges.

There was credible evidence that where there was proof that there was over
voting, the Electoral Commission annulled the votes at the particular polling
station. This step by the commission was justified because they apparently were
violations of statutory provisions quoted above in this opinion. That much was
also admitted by the second respondent; he only sought to mitigate the effect of
these errors when he made a half hearted effort by saying that he was not made
aware of those cancellations and if he had been he would have checked the
records further before cancelling the results. The fact that they had been

87
cancelled for over voting was not doubted; by that the second respondent set an
example he ought to follow wherever there was an over-voting.

I am of the view that our electoral laws will be given a lot of impetus and strength
and respect if they are given teeth to bite and all breaches are given uniform
treatment; what is good for the goose is equally good for the gander. Reduced to
simple practical terms polling stations where over voting took place the results
were cancelled, and there was no reason why the same thing ought not to be
done to where the same thong took place.

My overall assessment of the evidence on the ground of over-voting is that the

petitioners proved their case on the preponderance of evidence and that looking
at the weight of the votes affected by that irregularity, it affected the outcome of
the results so much that I have no option other than annulling those votes and I
do so annul them.

E. VOTING WITHOUT PRIOR BIOMETRIC VERIFICATION

The petitioners pleaded in their paragraph 29 of the affidavit by Dr Bawumia that:

“29. That equally, prior to the December 2012 elections, and after the enactment
of C.I. 75, Regulation 30 (2) which provides ‘The voter that shall go through a
biometric verification process.’ Before being allowed to vote, the second
respondent issued the following directive ‘NVNV’ . This again is to protect the
integrity of the voting register, and the entire elections. The Chairman of the
Electoral Commission stated it and four polling stations had their votes annulled
for ‘No verification no vote’ at the Nalerigu-Gambaga constituency, Kutre (No 1)
polling station, Code Number G 124201.”

The second respondent submitted that the petitioners did not produce a single
piece of evidence of anyone voting without being biometrically verified. Thus the
issue arose as to whether or not anybody voted without a prior biometric
verification and the burden of proof of this fact was cast on the petitioners.
88
 those transgressions. If on the other hand the transgressions of law by
the officials being admitted, the court sees that the effect of the
transgressions was such that the election was not really conducted
under the existing election laws, or it is open to reasonable doubt
whether the candidate who has been returned has really been elected
by the majority of persons voting in accordance with the laws in force
relating to elections, the court is then bound to declare the election
void. It appears to us that this is the view of the law which has
generally been recognised and acted upon by the tribunals which have
dealt with election matters.”

And again, the judgment in the case of Woodward v Sarsons (1875)

32L.T(N.s.) 867 at pp.870-871:

“... we are of opinion that the true statement is, that an election is to be
declared void by the common law applicable to Parliamentary
elections, if it was so conducted that the tribunal, which is asked to
avoid it, is satisfied, as a matter of fact, either that there was no real
electing at all, or that the election was not really conducted under the
subsisting election law: . . But if the tribunal should only be satisfied
that certain of such mishaps had occurred, but should not be satisfied
either that a majority had been, or that there was reason to believe that
a majority might have been prevented from electing the candidate they
preferred, then we think that the existence of such mishaps would not
entitle the tribunal to declare the election void by the common law of
Parliament.””

This is much the same as Canadian case of Opitz v. Wrzensnewskyj 2012 SCC 55-
2012-10- in which the court said as follows:
“The practical realities of election administration are such that imperfections
in the conduct of elections are inevitable ... A federal election is only
possible with the work of thousands of Canadians who are hired across the
country for a period of a few days or, in many cases, a single 14-hour day.
These workers perform many detailed tasks under difficult conditions. They
are required to apply multiple rules in a setting that is unfamiliar. Because
elections are not everyday occurrences, it is difficult to see how workers
44
 could get practical on-the-job experience... The current system of electoral
administration in Canada is not designed to achieve perfection, but to come
as close to the ideal of enfranchising all entitled voters as possible. Since
the system and the Act are not designed for certainty alone, courts cannot
demand perfect certainty. Rather, courts must be concerned with the
integrity of the electoral system. This overarching concern informs our
interpretation of the phrase “irregularities ...that affected the result.”
(Rothsterin and Moldaver JJ).”

The petitioners through their counsel’s written Address, at p.88 rely on Besigye
Kuza v Museveni Yoweri Kaguta and Election Commission [2001] UGSC 3
Judgment dated 20th April 2001 quoted Odoki CJ of Uganda saying:
“From the authorities I have cited there is a general trend towards taking a
liberal approach in dealing with defective affidavits. This is in line with the
constitutional directive enacted in article 126 of the Constitution that the
courts should administer substantive justice without undue regard to
technicalities...”

At p. 89 counsel also submitted as follows:

“In the Nigerian case of Dr. Chris Nwebueze Ngige vrs Mr. Peter Obi and
436 Others [2006] Volume 18 WRN 33, it was held by the Court of Appeal
at holding 30 that, election petitions are by their nature peculiar from the
point of view of public policy. It is, therefore, the duty of the court to
endeavour to hear them without allowing technicalities to unduly fetter their
jurisdiction.”

Consequently the petitioners seek equity from this court (which they deny to the
pink sheets) as follows:
“It is therefore submitted that since the affidavit of the 2nd petitioner to
which the pink sheets were annexed was duly executed and sworn to, the
unavoidable errors of pink sheet exhibits, where the authenticity is not

45
 disputed by the respondents, ought to be treated and waived as mere
irregularity, so that the said pink sheets exhibited which are already in
evidence can be considered and evaluated in the interest of substantial
justice.”

CONCLUSION

In modern times the courts do not apply or enforce the words of statutes but their
objects purposes and spirit or core values. Our constitution incorporates its spirit
as shown for example, in article 17(4) (d). This means that it should not be applied
to satisfy its letter where its spirit dissents from such an application. Thus in Black
v Value Capital Ltd.(1975) 1 WLR 6 Goulding J held as stated in headnote 2 thus:
“That although he plaintiffs’ proposed amendments could technically be
brought under paragraph (f) or (i) and (j) of Order 11, r.1(1), they should
not be allowed since to do so would be an application of the letter but not of
the spirit of the rule, in that it would allow the trial in England of a dispute
between foreigners merely because it concerned money in the hands of
English bankers whose only interest therein was their proper bank charges,
or because the agreements were expressed to have been executed in London,
although the disputant companies were neither incorporated, resident nor
trading in England, and the agreements were expressly to be governed by
and enforced in accordance with Bahamian law (post, pp. 15G-16A); that in
all the circumstances the only court that could effectively exercise
jurisdiction was the Bahamian court which could act in personam against
PRL and VCL and compel the use of their names and seals, and which was
already seised of the winding up petitions, and leave to amend would
therefore be refused (post, p. 16D-F)”

The Mischief rule of construction is much the same as the spirit of a statute. In
Catherine v Akufo-Addo (1984-86) 1 GLR 96 C.A at 104 Mensa Boison J.A in
delivering the judgment of the Court of Appeal said:

46
 “It is a sound rule, where the words admit, that an enactment should be
construed such that the mischief it seeks to cure is remedied, but no more.”

Further allied is the rule of construction relating to absurdity, see Brown v

Attorney-General (2010) SC GLR 183.

It would indeed be absurd for the courts to hold as was done in Republic v
Chieftaincy Committee on Wiamoasehene Stool Affairs; Ex parte Oppong Kwame
and Another [1978] 1 GLR 467 C.A (Full Bench) and do otherwise in this case.
As stated in the headnote to that case:
“Having been destooled by the Agona Ashanti Traditional Council, the
Wiamoasehene appealed, and the National Liberation Council (N.L.C.)
acting under Act 81, s.34 appointed a chieftaincy committee to inquire into
the matter. The committee found the destoolment null and void and
recommended that the appeal be allowed. The N.L.C. confirmed the
findings by a notice in the Local Government Bulletin which also included
the phrase “that the appeal be dismissed.” A corrective notice repeating the
confirmation but using the phrase “That the appeal be allowed” was
published in a subsequent Local Government Bulletin. This attempt at
correction was challenged by certiorari proceedings on the grounds that
when the second notice was published the N.L.C. was functus officio and
had no right to effect corrections after the first publication; and even if it had
such right, the party adversely affected should have been given an
opportunity to challenge the correction. The High Court held that the N.L.C.
was precluded from re-opening the matter and this decision was affirmed by
the Court of Appeal.

On an application for review by the full bench,

Held, allowing he application: (1) on the facts, far from having a change of
mind, the N.L.C. had from the outset been desirous of giving force to the
decision of the chieftaincy committee. The deliberate and repeated use by
the N.L.C. of the term “confirmed” made it clear that not only was the first
publication contrary to the findings and recommendations of the chieftaincy
committee, but also that an obvious mistake had occurred. The argument
that a word once inscribed in print was beyond recall was contrary to good

47
 sense. Even the finality of res judicata permitted the correction of clerical
mistakes by the contrivance of the “slip rule.”” (e.s)

Indeed when the constitution itself or any statute commits an error this court
rectifies it see Agyei Twum v Attorney-General Akwety (2005-2006) SC GLR 732
where a constitutional omission relating to the procedure for the removal of the
Chief Justice was rectified by reading into the relevant provisions, the necessary
addition.

To sum up the result sought by the petitioners in this case would involve what
Mackinnon J protested against in British Photomaton Trading Company, Limited v
Henry Playfair, Limited (1933) 2 K.B 508 at 520 when he said: “this is a result
against which one is inclined to struggle, because it tends to outrage both common
sense and what is fair.”
REFORMS
This petition however has exposed the need for certain electoral reforms. I
mention same of them.
• The Voters register must be compiled and made available to the parties as
early as possible.
• A supplementary register may cater for late exigencies.
• The calibre of presiding officers must be greatly raised up.
• The pink sheet is too elaborate, a much simpler one to meet the pressures of
the public, weariness and lateness of the day at the close of a poll etc.
• The carbon copying system has to be improved upon.
• The Biometric Device System must be streamlined to avoid breakdowns and
the stress on the electorate involved in an adjournment of the poll.

48
 • Invalidating wholesale votes for insignificant excess numbers is not the best
application of the administrative principle of the proportionality test.

The South African biometric system as judicially reviewed in The New National
Party of South Africa v The Government of the Republic of South Africa, Case CCT
9/99 dated 13/4/1999 may be instructive.
However it is judicially acknowledged that the Electoral Commission is the body
mandated by the constitution to conduct Elections and Referenda in Ghana and
their independence must be respected as required by article 46 of the constitution.
Their subjection to judicial control under articles 295(8), 23 and 296 (a) and (b)
must be operated within the well known principles of judicial review of
administrative action.

The case of Appiah v Attorney-General, supra therefore cautions that the

reasonable exercise of a discretion by them in situations that may confront them
ought not to be judicially impeded.

KPMG
I do not know how to express the gratitude of the judiciary and indeed of Ghana to
KPMG for their unprecedented selfless and patriotic service so fully rendered this
court with such professionalism and dedication. They are a rare species of Lover
of Ghana and the cause of justice and democracy.

We are also grateful to counsel for their industry.

But in the end I am driven by the sheer justice of this case which hinges much on
technicalities of the pink sheet, to dismiss the same subject to the useful electoral
49
reforms it has exposed as necessary to enhance the transparency of the Electoral
process of Ghana.

(SGD) W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT

50
ANSAH,J.S.C

INTRODUCTION/BACKGROUND

The facts surrounding this suit have been fully played out in near epic dimensions
before the public.

However, there is no way this suit can be seen as a likeness of the numerous
cases on various aspects of our 1992 Constitution. Indeed, I venture to say it
cannot be compared to any of the cases touching on various aspects of all our
previous Constitutions.

By virtue of its peculiar nature and potential effects, many commentators have
rightly described this suit as one posing a test of the structural maturity of our
democratic ethos, causing all eyes worldwide to focus, even if only briefly, on
our polity to see if and how we can surmount this unique challenge.

Without doubt, the resolution of this case portends much for the future path of
our democratic development.

On 7th December, 2012, Ghana underwent its sixth general elections under the
1992 Constitution. On account of factors which led in part to the present suit, the
elections for the first time in the post-1992 Constitution era spilled over into the
next day, that is, 8th December, 2013. Whiles the parliamentary results from the
elections were largely unchallenged, the results of the presidential elections have
come up for judicial scrutiny through this action.

On 9th December, 2012, the Electoral Commissioner, the constitutionally

designated returning officer in presidential elections, announced the results of
the Presidential elections as follows:

a. John Dramani Mahama 5, 574, 761 50.70%

b. Dr. Henry Herbert Lartey 38, 223 0.35%
c. Nana Addo Dankwa Akufo-Addo 5, 248, 898 47.74%
d. Dr. Papa Kwesi Nduom 64, 362 0.59%
e. Akwasi Addai Odike 8, 877 0.08%

51
 f. Hassan Ayariga 24, 617 0.22%
g. Dr. Michael Abu Sakara Forster 20, 323 0.18%
h. Jacob Osei Yeboah 15, 201 0.14%

Based on these results, the 2nd respondent declared John Dramani Mahama, the
1st Respondent in this case, as the winner of the Presidential elections.
Subsequently, on 7th January, 2013, the Chief Justice of the Republic of Ghana
swore the 1st Respondent to assume office as the President of the Republic of
Ghana.

THE PETITIONERS’ ACTION

The petitioners seek in this action to set aside the election and swearing in as
president of the 1st Respondent.

The 1st and 2nd petitioners had contested the 2012 general elections on the ticket
of the New Patriotic Party (hereinafter referred to as the NPP) as that party’s
presidential and vice presidential candidates. The third respondent is the
chairman of the NPP.

By their petition, the petitioners themselves proceeded against the first and
second respondent. The first respondent is the current President of the Republic
of Ghana, whereas the second respondent is the body set up under Chapter
Seven (7) of the Constitution to inter alia, conduct and supervise all public
elections and referenda. The National Democratic Congress (hereinafter referred
to as the NDC) was joined as the third respondent herein after a successful
application to this Court.

The petitioners seek a one hundred and eighty degree twirl from the events of 9th
December, 2012 and 7th January, 2013. In their own words, they seek from this
Court:

“(1) A declaration that John Dramani Mahama, the 1st respondent herein, was not
validly elected president of the Republic of Ghana;

(2) A declaration that Nana Addo Dankwa Akufo-Addo , the 1st petitioner herein,
rather was validly elected President of the Republic of Ghana;
52
(3) Consequential orders as to this Court may seem meet.”

The grounds for these reliefs were inextricably linked to various alleged deviations
from the prescribed procedures for the conduct of presidential elections which
said deviations, according to the petitioners, incurably vitiated the election and
swearing in of the 1st respondent as president of Ghana.

The petitioners stated the said Grounds in their second amended petition in these
terms:

“Ground 1: There were diverse and flagrant violations of the statutory provisions and
regulations governing the conduct of the December 2012 Presidential elections which
substantially and materially affected the result of the elections as declared by the 2nd
Respondent on 9th December, 2012.

Ground 2: That the election in 11,916 polling stations was also vitiated by gross and
widespread irregularities and/or malpractices which fundamentally impugned the
validity of the results in those polling stations as declared by 2nd Respondent.”

I consider it essential to set out the petitioners’ particulars of this Ground 2 as these
indeed embody several of the irregularities relied on by the petitioners in their
challenge of the 2012 presidential election results. The petitioners couched the said
particulars thus:

“(a) That the results as declared and recorded by the 2nd Respondent contained
widespread instances of over-voting in flagrant breach of the fundamental
constitutional principle of universal adult suffrage, to wit, one man one vote.

(b) That there were widespread instances where there were the same serial numbers
on pink sheets with different poll results, when the proper and due procedure
established by 2nd Respondents required that each polling station have a unique
number in order to secure the integrity of the polls and will of the lawfully registered
voters.

53
• Over-voting

• Voting without fingerprint biometric verification

• Same serial numbers on pink sheets with different results

• Polling stations bearing the same polling station codes and yet with different
results

• Absence of signature of presiding officer on some pink sheets

• 28 locations where elections took place which were not part of the 26,002
polling stations created by the 2nd Respondent for purposes of the elections

• Widespread instances where figures and words of votes cast in the elections
and as recorded on the pink sheet did not match

• Padding of votes for the 1st Respondent and reducing the votes of the 1st
Petitioner.

However, by paragraph 23 of the affidavit of Dr Mahamadu Bawumia filed on

the 7th April 2013, pursuant to the directions given by the court on the 2nd
April 2013, the grounds set out in the petition were subdivided by the
Petitioners into six categories as follows:

i) Over-voting, that is to say, widespread instances of polling stations

where (a) votes cast exceeded the total number of registered voters or (b)
votes exceeded the total number of ballot papers issued to voters on voting
day in violation of Article 42 of the Constitution and Regulation 24 (1) of
C1.75
ii) Widespread instances of polling stations where there were no
signatures of the presiding officers or their assistants on the pink sheets in
clear violation of Article 49 (3) of the Constitution and Regulation 36 (2) of
C.I.75

110
 iii) Widespread instances of polling stations where voting took place
without prior biometric verification in breach of Regulation 30 (2) of C.I.75
iv) Widespread instances where there were the same serial numbers on
pink sheets with different poll results, when the proper and due procedure
established by the 2nd Respondent required that each polling station have a
unique serial number in order to secure the integrity of the polls and the will
of lawfully registered voters
v) Widespread instances of polling stations where different results were
strangely recorded on the pink sheets in respect of polling stations bearing
the same polling station code, when, by 2nd Respondent’s established
procedure, each polling station was assigned a unique code in order to avoid
confusing one polling station with another which could not be explained by
a reference to special voting
vi) Twenty three ( 23) locations where voting took place which were not
part of the twenty six thousand and two (26,002) polling stations created by
the 2nd Respondent for purposes of the December 2012 elections.

The Petitioners contend that the irregularities vitiated the presidential results in
eleven thousand nine hundred and sixteen (11,916) polling stations by four million
six hundred thousand five hundred and four votes (4,670,504).That if these votes
were to be annulled, the 1st Petitioner would get three million seven hundred and
seventy-five thousand five hundred and fifty-two votes representing 59.69% of
votes cast while the 1st Respondent gets two million four hundred and seventy-
three thousand one hundred seventy-one votes representing 39.1% of votes cast.

The Petitioners say that in circumstances the 1st Respondent did not obtain more
than 50% of the total votes cast in the election as required by Article 63 (3) of
Constitution, in order to become President and such ought not to have been
declared President. The Petitioners concluded that the 1st Petitioner having
obtained more than 50% of the votes cast ought to be declared the President of the
Republic of Ghana.

111
The Petitioners say that the irregularities were a deliberate well-calculated ploy to
assist the 1st Respondent thereby subverting the sovereign will of the electorate
contrary to the preamble of the Constitution, Articles 1(1), 42 and 63(3) of the
Constitution.

The Petitioners therefore request the Court to declare that:

1. John Dramani Mahama, the 1st Respondent was not validly elected as
President of Ghana
2. Nan Addo Dankwa Akufo-Addo, the 1st Petitioner herein was rather validly
elected President of Ghana
3. Consequential orders as to this Court may seem meet.

1st Respondent’s Answer

1st Respondent denies the allegation of the Petitioners that STL was contracted by
the 2nd Respondent to carry out the said functions in respect of the elections and
this was affirmed when a delegation of political parties led by Hon. Osafo Maafo
visited STL.

1st Respondent asserts that the difference in the figure of 13, 917,366 announced
by 2nd Respondent was provisional since 2nd Respondent had at that time not yet
registered prisoners and other voters, including those in the diplomatic missions
abroad and on peace-keeping missions, and had also not done the mop-up exercise
it undertook subsequently. He disputes any suggestion that there were some veiled
reasons in the differences in the provisional registered voters after the biometric
registration; and that the suggestion is without basis and smacks of utmost bad
faith. 1st Respondent also says that Petitioner has failed to supply them with
particulars of the manner in which the results of the presidential elections were
tampered with.
112
1st Respondent also denies that 2nd Respondent delayed in making the voters
register available to the NPP and states that the register was delivered to both
parties at the same time. He added that a common register was used for both the
presidential and parliamentary elections.

1st Respondent contends that the basis of the declaration of the results was the
aggregate of total valid votes cast which was 10,995,262.

1st Respondent rejects the irregularities canvassed by the Petitioners and states that
fingerprint verification is not the only means of verification. He contends that in
terms of Article 42 of the 1992 Constitution, failure or the inability of voters to go
through fingerprint verification should not be used to deprive voters of their
Constitutional right to vote. As such, any electoral law which has that effect is
inconsistent with the Constitution and as such unconstitutional.

1st Respondent contends the 1st Petitioner’s agents certified the results at the
polling stations without protest, and thereby accurately represented to the world
that the results accurately reflected the outcome of the election in the respective
polling stations.

1st Respondent contends that duplicate codes on pink sheets would not invalidate
the declared results of supervised elections in those polling stations and the votes
validly cast.

1st Respondent contends further that the absence of signatures on any of the pink
sheets cannot invalidate the results shown on those sheets as they were the result of
painstaking, public and transparent sorting and (re)counting at the various polling
stations with the full participation of 1st Petitioner’s agents.

113
In addition to denying the allegation of duplicate serial numbers, 1st Respondent
says that even if it were true, it did not affect the declared results of the elections.

1st Respondent says that the change in the total number of registered voters
between that given to the parties and that declared on 9th December, even if it were
true would not invalidate the elections.

He also states that as the polls were declared publicly and openly, even if there
were conflicts between the words and figures on the pink sheets that did not affect
the declared results of the elections. This is even more so as 1st Petitioner’s agents
were present at the various polling stations and did not protest.

1st Respondent disputes the table set out in paragraph 20 of Ground 3 of the
petition and states that it is the product of double counting in many instances. He
says further that the request to annul that number of votes would undermine the
fundamental rights of Ghanaians under Article 42 of the Constitution. Also any
deduction derived from that table, lacks any basis in law or in fact.

1st Respondent states that there was no ploy to unlawfully assist him to win and 1st
Petitioner is only finding an excuse for losing the elections.

2ndRespondent’s Answer

The 2nd Respondent states that there was no arrangement with STL to receive and
transfer election results. Instead STL after winning a competitive bidding was
chosen to provide services to the 2nd Respondent which included training of staff
and field support and provision of equipment including the provision of a VSAT
(Very Small Aperture Terminal) system whereby Registration Database would be

114
sent directly from the 2nd Respondent’s District Offices to the Registration
Database at its Head Office.

Also the situation of one million voters not being assigned to any polling station
was corrected.

The 2nd Respondent says that the initial provisional figure he announced was 13,
917,366 which was later changed to 14, 158, 890 after the registration of foreign
service officials, students abroad on government scholarship, other Ghanaians
working abroad in international organisations and the late registration of service
personnel returning from international peace keeping duties. After adding those
wrongly omitted, excluding those wrongly added and removing multiple
registrations, the number finally obtained was 14,031,680. He adds that the voters
register is dynamic and not static as required by Regulation 9 of (C.I. 72).

2nd Respondent states that the number of registered voters that was given to the
political parties including the NPP was 14,031,793 and that the figure of
14,158,890 stated in the declaration result was an error. The correct number of
registered voters of 14, 031,793 was duly posted on the 2nd Respondent’s website.
It states that the error would have no bearing on total votes cast and would only
affect the turnout percentage and change it from 79.43% to 80.15%.

The 2nd Respondent states that the NPP and NDC were the first to receive the final
voters register on 21November, 2012 and that the preparation of the final voters
registers was a mammoth exercise.

The 2nd Respondent also states that all the political parties, including the NPP,
received daily print outs of the registration effected at the registration centres.

115
The 2nd Respondent also states that the registers for both the parliamentary and
presidential elections had the same number of registered voters. The 2nd
Respondent states further that each voter was verified only once to cast votes for
the candidate of his choice for both the presidential and parliamentary elections.

The 2nd Respondent states further that the total number of valid votes cast is
10,995,262 and not 14,158,880 as shown in the Petition.

The 2nd Respondent claims it kept to its decision and allocated to each polling
station, 10% ballot papers that were above the number of registered voters for the
polling station. Further, during printing, representatives of political parties were
present at the printing houses that were engaged by 2nd Respondent. They were
also briefed prior to this about the statistics of the number of ballot papers that
were to be given to each polling station in booklets of 100, 50 and 25 sheets which
could not be split.

The 2nd Respondent claims that the polls were counted in the public view and
results announced publicly in the presence of the agents of the candidates. Agents
also have a right to ask for a re-count or to refuse to sign the declaration form.

2nd Respondent also states that it were only persons who were successfully
verified that were allowed to vote and this is why the elections in 400 polling
stations were postponed to the next day, when the biometric verification equipment
broke down. The EC also noted that the Commonwealth Observer Group
recommended on page 36 of their report that the requirement that elderly people be
biometrically verified should be reviewed. The ECcontends that the fact that every
voter was verified is also supported by the pink sheets.

2nd Respondent also claims that every polling station had a name and unique code.
Its examination of the further and better particulars supplied by the Petitioners
116
showed that wrong codes were quoted by the petitioners in their particulars and
also that where a polling station used for the presidential and parliamentary
election was also used for Special Voting (by Security Personnel, etc.), that polling
station kept the same code number though the Results of the Special Voting and
the results of the voting on December 7 and 8 were given separately. Thus the
request to invalidate votes should be refused as it is without merit.

The 2nd Respondent claims that of the 2,009 Pink Sheets that the Petitioners
claimed to be unsigned, 1,099 were, in fact signed by the Presiding Officer at the
polling station or, at the instance of the Returning Officer, at the Collation Centre;
905 were unsigned representing 3.5% of the total number of Pink Sheets
nationwide; and 1,989 Pink Sheets, representing 99% of the number claimed to be
unsigned, were signed by the Polling or Counting Agents of the candidates. It
could also be that the signature failed to appear as the Pink Sheets the Petitioners
had were only copies of the original.

It also claims that there was no instance where total votes cast exceeded number of
voters on the register.

It also claims that in instances where different polling stations had the same serial
number, they bore different names and code as such the request to annul those
Sheets should be rejected.

It also states that there is no explanation for how the figures in the table in ground
3 of paragraph 20 of the petition were arrived at; and above all there is no
justification for the deduction.

2nd Respondent claims further that of the three instances of over padding cited, two
were wrong and one was a transposition error in which 17 was stated instead of 97.

117
of the Public Elections (Registration of Voters) Regulations 2012, to exhibit the
Provisional Register for public inspection at the registration centres. The purpose
of the public display is for the registered voter to check whether his name is on the
register and to ascertain whether the particulars on his voter’s identification card
are the same as the particulars contained in the provisional register. In case of any
discrepancy a person may request for the exhibition officer to make correction in
the provisional register. In case a person is registered and his name does not appear
in the provisional register he may make a claim in the prescribed manner to have
his name entered on the provisional register. A person may also file a challenge to
a person whose name appear in the provisional register on the ground that the
person is not qualified to be registered as a voter.

These claims and objections are settled by a District Registration Review Officer.
The Commission certifies the register after the determination of claims and
objections.

This verification exercise naturally resulted in a variation between the number of

registered voters in the provisional register and the final Voters Register.

It seems to me that apart from the discrepancies in the voters register, I do not find
any substance in the complaints being made by the Petitioner against the voters
register. The Political parties and citizens had the shared responsibility to check the
provisional register for accuracy when it was exhibited, though the ultimate
responsibility for a clean and reliable register rests on the EC.

There was bound to be hiccups during the registration and compilations of the
Principal Register by the use of biometric verification devices for the first time in
Ghana namely unfriendly climatic conditions in which the machine was operated
causing it freeze; and unfamiliarity with the device by the users.

130
Despite these few setbacks, I find that the EC had conducted its affairs
professionally and transparently to produce a clean, credible and reliable voters
register. Information regarding the voters register is available on the EC’s Website.
At the trial it was established that the final register was given to all political parties
in the form a CD-ROM and hard copies as well.

From the foregoing I hold that the petitioner’s complaint that the compilation of
the voters register had an adverse impact on the 2012 December Elections cannot
be sustained.

Violations, Omissions, Malpractices and Irregularities in the Conduct of the

Presidential Elections held on the 7 and 8 December, 2012.

The petitioners in the written address made what I term the Petitioner plea that:

“…[W]hat all citizens expect form the highest court of the land is the
interpretation and enforcement of the Constitution and the law, and
their application to the evidence adduced in this trial without fear or
favour, as the judicial oath of the learned justices of this Honourable
Court requires of them.”

And this is what I set out to do.

CONSTITUTIONAL AND STATUTORY VIOLATIONS

Article 49 of the Constitution makes provision for the conduct of voting. The same
Constitution under Article 51 empowers:

“The Electoral Commission, by constitutional instrument, make regulations,

for the effective performance of its functions, under the Constitution or any

131
CATEGORIES OF IRREGULARITIES

A. UNKNOWN POLLING STATIONS

The petitioners’ claim here concerns the 22 so-called unknown polling stations.
This was a reduction of the petitioners’ initial allegation of 28 unknown polling
stations.

The 2nd respondent showed that the flag bearer of the political party to which the
petitioners belong, who is also the 1st petitioner herein, himself signed letters
appointing polling agents to these same polling stations. It is difficult to fathom
how in light of this the petitioners could maintain a claim that these polling
stations were unknown.

I find the petitioners’ case in this respect not satisfactory. There was evidence
that following the aforesaid appointment letters, the petitioners sent their agents
to the polling stations, voting took place there, the votes were counted and
results declared, and finally the agents signed the result forms. In the face of
these overwhelming evidence, no one will doubt that the allegation of voting
taking place at stations outside the 26,002 polling stations created by the second
respondent was ill founded and remained unproven at the end of the trial.

For these reasons, I also like my respected brethren, dismiss that part of the
petitioners’ claim against the 2012 presidential elections founded on that ground.

B. PINK SHEETS NOT SIGNED BY PRESIDING OFFICERS OR THEIR ASSISTANTS

The petitioners alleged there were widespread instances of polling stations where
there were no signatures by the presiding officers or their assistants on the pink
sheets in clear violations of Article 49(3) of the Constitution and Regulation 36(2)
of CI 75. These are contained in Paragraphs 33, 47 and 58 of the affidavit by Dr.
Bawumia. He deposed that (quoted in extenso below):

“33. That I am advised and verily believe same to be true that by virtue of Article
49 of the Constitution, especially clause (3) thereof, and also Regulation 36 (2) of
C.I.75, the Presiding Officer has a mandatory constitutional and statutory duty to
65
sign the declaratory form at the polling station before he can lawfully declare the
results at the polls at that polling station.”

47. That there were 66 polling stations where instances of constitutional and
statutory violations malpractices and irregularities in the nature of (I) over voting,
(ii) voting without biometric verification; (iii) the same serial numbers on pink
sheets with different results and (iv) the absence of signatures of the presiding
officers or their assistants on pink sheets occurred and can be found on the pink
sheet , the combined effect of these infractions completely vitiated the 32,469
votes cast in these polling stations. Attached hereto and marked as Exhibits MB-F,
,B-F-1 TO MB-F-65 are photocopies of the pink sheets of the polling stations where
these infractions occurred.

58. That there were 310 polling stations here exclusive instances of constitutional
and violations in the nature of absence of signatures of polling presiding officers
and their assistants on the pink sheets occurred and can be found on the pink
sheets. The combined effect of these infractions vitiated 112,754 votes. Attached
herewith and marked as Exhibit MB-S to MBS-1 to MB-S-309 are photocopies of
pink sheets of the polling sheets where the infractions occurred.

The constitutional provision relied on in connection herewith is Article 49, which

provided that:

“(1) At any public election or referendum, voting shall be by secret ballot.

(2) Immediately after the close of the poll, the presiding officer shall, in the
presence of the candidates or their representatives and their polling agents as
are present, proceed to count, at that polling station, the ballot papers at that
polling station, the ballot papers of that polling station and record the votes
cast in favor of each candidate or question.

(3) The presiding officer, the candidates or their representative and, in the case
of a referendum, the parties contesting or their agents and the polling agents if
any, shall then sign a declaration stating

(a) the polling station, and

66
 (b) the number of votes cast in favor of each candidate or question,

and the presiding officer shall, there and then announce the results of the voting
at that polling station before communicating them to the returning officer.”

Another relevant statutory provision is Regulation 36 (2) of the Public Elections

Regulations 2012, C.I. 15 which read:

“(2) The Presiding officer, the candidates, or their representatives and the
counting agents shall then sign a declaration stating

a. the name of the polling station;

b. The total number of persons entitled to vote at that polling station;
c. The number of votes cast in favor of each candidate; and …”

The words of Article 49 (3) and Regulation 36 (2) of C.I.75 are the same. In fact the
constitutional provision was lifted word for word in C.I.75. They are in pari
materia one with the other.

I would say of these provisions that they are some of the safeguards of the right
to vote; the signature by the persons named in the statutes authenticates the
document and its contents and by the rules of interpretation are to be read as
enforcing each other.

It may be recalled that the Director of Finance and Administration of the Electoral
Commission, Mr. Amadu Sulley, swore an affidavit to challenge the claim by the
petitioners that some pink sheets were not signed. The second respondent
commission in these proceedings said 1,009 pink sheets were signed by the
Presiding officers at the polling station or at the instance of the Returning officer
at the collation center; but 905 pink sheets were found to have been left
unsigned. Dr. Kwadwo Afari Gyan said in his evidence in chief that it is only the
presiding officers and the candidates’ agents who can sign the pink sheets
lawfully. The petitioners submitted there were more than 905 unsigned pink
sheets. Dr. Afari Gyan conceded these facts, and that they were more than that.
In fact in his address, counsel for the petitioners said he was relying on 1638
unsigned pink sheets, involving ‘65,9814’ votes.

67
It is not difficult to interpret the meaning of these provisions. They mean that the
persons named therein, namely the presiding officer, the candidates or their
representatives and the counting agents, shall sign the declaration form stating
the particularized items. There was no mention made of ‘polling assistants’ in the
two provisions let alone requiring them to sign the declaration form. If therefore
they did not sign the forms they committed no irregularity; none could therefore
use that failure to found or support a case of irregularity or violation of any law.
But the presiding officer was not relieved from the duty to sign the declaration
forms; it was a mandatory duty cast on them by the constitutional and statutory
provisions governing elections in the country; the legitimate inference is that
failure by the presiding officer to sign the declaration form is an irregularity which
cannot be excused or waived on the grounds that the pressure of time, prevailing
atmospheric condition, etc, etc, did not simply allow or permit them to sign the
forms and thereby comply with the constitutional duty.

The duty cast on the presiding officers to sign the declaration was couched in
mandatory terms and deserves obedience and not meant to be disobeyed. An
election much more so, Presidential Elections, are serious matters governed by
well laid rules to preserve sanctity and integrity of the elections, especially where
a specific duty is imposed on election officials. A breach of any of those duties
meant the integrity of the election was compromised and ultimately affected the
exercise of the right to vote as well as jeopardizing the sovereign will of the
people.

Because of this, I am unable to accept the alibi put up by the respondents, like
pressure of work, nature of carbon paper making the signatures look faint
through over use, and pressing the pen too often, too hard.

In paragraph 47 of the affidavit, the petitioners deposed that:

“47. There were 66 polling stations where violations of constitutional and

statutory violations, malpractices and irregularities in the nature of (i) over
voting,( ii) voting without biometric verification, (iii) same serial numbers on pink
sheets with different results and( iv) absence of signatures of the presiding officers
and their assistants occurred and can be found on the same pink sheets. The
68
combined effect of these infractions completely vitiated 32,469 votes cast in these
polling stations. Attached herewith and marked as Exhibit MB-F, MB-F-1 to MB-F-
65 are photocopies …..”

Paragraph 58 of the affidavit of Dr. Bawumia read:

“58 That there were 310 polling stations where exclusive instances of
Constitutional and statutory violations in the nature of: absence of signatures of
the presiding officers or their assistants on pink sheets. The combined effect of
these infractions vitiated 112,754 votes. Attached herewith and marked as
Exhibits MB-S to MB-S-1 to MB-S 309 are photocopies of pink sheets of the polling
stations where these infractions occurred.”

These paragraphs of the affidavit spoke of the same thing, namely the absence of
signatures of the presiding officers on the face of the pink sheets; paragraph 58
went on to show where these infractions occurred and also to provide the
exhibits affected pink sheet by pink sheet as well as the number of votes vitiated
thereby.

Article 49 (3) of the Constitution read:

“ (3) The presiding officer, the candidates or their representatives and, in the case
of a referendum, the parties contesting or their agents and the polling agents if
any, shall then sign a declaration stating

(a) The polling station, and

(b) The number of votes cast in favor of each candidate or question ,

and the presiding officer shall there and then announce the results of the voting at
that polling station before communicating them to the returning officer,”

The Regulation referred to also read:

“36 (2) The presiding officer, the candidates, or their representatives and the
counting agent shall then sign a declaration stating

(a) The name of the polling station;

(b) The total number of persons entitled to vote at that polling station;
69
 (c) The number of votes cast in favor of each candidate; and
(d) The total number of rejected ballots.”

I shall return to this ground again in this delivery for the issues involved are of
prime importance in conducting elections in the country. For the meantime it is
sufficient to say that the real meaning of the combined effect of these
constitutional and statutory legal provisions, is that they cast a mandatory duty
on the presiding officer, the candidates or their representatives are to sign the
declaration form before the presiding officer announces the results at the polling
station. Signing a document like a declaration means the person wrote it or part
of it, that he agrees with what it says, or that it is genuine; see the Oxford
Advanced Learner’s Dictionary, p 1366. The authors of the pink sheets, the
framers of the constitution and the legislature really meant to do a serious
business when they made the law and couched it in these mandatory terms. By
the use of the word ‘shall’, the legislature intended that the duty to do the act
specified and cast on the presiding officer must be honored in obedience than the
letter.

I am fortified in this view because of the interpretation given of the word in

our Interpretation Act, 2009, (Act 792) which provided that:

“27 ‘Shall’ and ‘may

In an enactment made after the passing of this Act, ‘shall’, shall be construed as
imperative and ‘may’ as permissive and empowering.”

‘Shall’ connotes an obligation, or mandatory duty conveying a command bereft of

a discretion: see Blacks Law Dictionary (supra) at page 1407.

The unreported judgments of this court in Suit No. J1/23/2013, Martin Amidu v
Attorney General & 2 ors 2013 unrep. dated 21st June 2013, SC; (commonly called
the Isofoton case.); Writ No. Writ No. J1/15/2013 Martin Amidu v Attorney-
General, Waterville and Woyome (the Woyome case), S.C. unrep. 14TH June 2013,
SC; Attorney-General v Faroe Atlantic Co. Ltd. [2005-2006] SCGLR 271 support the
proposition that where an enactment uses the word ‘shall’, it means mandatory
or imperative.
70
In consideration of this well known interpretation, when the petitioners alleged
these violations of the constitution and enactments and went on to provide
evidence in support by way of the Exhibit MB-S series, the onus shifted by law on
to the respondents to lead evidence in rebuttal or to admit the allegations.

The second respondent deposed to an affidavit in response to this allegation that

when it received the allegation of no signature by the presiding officer or his
assistant on the pink sheet it proceeded to examine them (pink sheets) and found
that out of the 2009 pink sheets alleged by the petitioners that were not signed,
1099 were in fact signed by the Presiding Officer at the polling station, or at the
instance of the Returning Officer at the Collation Center, 905 were unsigned
representing 3.5% of the total number of pink sheets nationwide.

When Dr. Kwadwo Afari Gyan, the Chairman of the Electoral Commission, who
gave evidence for and on behalf the Commission second respondent, was cross
examined on his evidence he said there were instances where some pink sheets in
addition to the 905 admitted not to have been signed, there more unsigned pink
sheet, but which were signed at the collation center at the instance of the
Returning officer. Mr. Johnson Asiedu Nketia made a similar admission that
presiding officers did not sign the pink sheets as was required of them by the law.

If it was accepted that the law cast a mandatory duty on the presiding officer to
sign the pink sheet, then he could not neglect to perform that act; excuses like the
officer had a lot of work to do that day, and signing the pink sheet was only one of
them, the prevailing weather, the crowd at the polling station shouting ‘tsoo boi’
(see the evidence of Asiedu Nketia), could not be good enough reasons to relive
him from discharging his legal duty. Considering the importance the nation
attaches to the exercise of conducting a national election, sustaining the integrity
of the election should be zealously guarded; this could best be done by the
presiding officer in charge of affairs at the polling station appending his signature
to the declaration to testify that the events on the face of the pink sheet took
place there.

In Presidential elections, a polling station is but a microcosm of the country at

large where the whole country is a one constituency. A presiding officer at a
71
polling station in a constituency is like a returning officer for the whole country in
Presidential elections where there is only one constituency. If the presiding officer
at a polling station shall fail to sign a declaration form at the end of a poll what
shall it mean? Can the Returning officer in a Presidential election refuse to sign
the declaration form and announce the results of the election and still hope it will
still be accepted as valid? If the answer is in the negative, then it is to the same
effect where a presiding officer fails to sign the declaration of results portion of a
pink sheet at a polling station and so do I hold.

I hold in my concluding comments on this ground, that the failure to sign the pink
sheet was a monumental irregularity unmitigated by any circumstances. I am
further fortified in this view by the observation that in establishing the duty for
presiding officers to sign pink sheets before proceeding to declare the results of
the polls at the polling station, Article 49 (3) of the Constitution does not merely
constitute a mandatory constitutional duty on presiding officers to do so prior to
announcing the election results, but it is also one of the entrenched provisions of
the Constitution. In the face of the full force of this entrenched constitutional
requirement, I am unable to make any exception to save the pink sheets
impugned by the omission of the presiding officers on the basis of the
explanations offered by the respondents. I am emboldened to come to this
conclusion following upon the holding that:“the Ghana Supreme Court has
recognized the concept of the spirit of the constitution as a tool of constitutional
interpretation……to ensure that Ghana succeeds in her fourth attempt at
democratic and constitutional system of government, both the government and
the people should observe not only the written provision of the constitution but
it’s spirit as well.” See The Law of Interpretation in Ghana, Exposition and Critique
by S.Y.Bimpong-Buta Chapter 10 p373.

All things considered, I am of the candid opinion that the failure by the presiding
officer to sign the pink sheet before announcing the results constituted an
omission to perform and a breach of his constitutional duty. It vitiated the votes
cast at the polling station, a more monstrous irregularity no one can imagine.

72
I may remark that it was as unpardonable as it was inexcusable that presiding
officers should fail to sign declaration portion of pink sheets they worked with on
the polling day from the beginning to the end of polls on the election day.

Based on the foregoing discussion under this head of irregularities, I find that all
votes cast and declared during the 2012 presidential elections which involved
pink sheets not signed by presiding officers or their assistants are to be nullified
and I so declare.

C. DUPLICATE SERIAL NUMBERS AND POLLING STATION CODES

The petitioners deposed in their grounds for the petition that:

“40. There were widespread instances where different results were strangely
recorded on the pink sheets in respect of polling stations bearing the same polling
station codes, when by the second respondents established practice each polling
station was assigned a unique code in order to avoid confusing one polling station
with another which could not be explained by a reference to special voting.”

In their affidavit in affidavit filed pursuant to the court directions and

memorandum of issues and mode of trial dated 2nd April 2013, the second
petitioner deposed in paragraph that:

“40. That exclusive … polling station codes were found in 37 polling stations in 34
of these stations, representing 91% of this irregularity together with i) over
voting, ii)voting without biometric verification and iii) same serial number of
different pink sheets with different … Only in 3 polling stations did the irregularity
occur without other violations, irregularities or malpractices.”

It was further deposed on the grounds of the petition that:

“59 That there were polling stations where exclusive instances of irregularities
and malpractices of polling stations with some polling station codes and different
results occurred and can be found …

73
The respondents agreed that what differentiates one polling station from the
other is the polling station code. Dr. Afari-Gyang said at page 12 of the record of
proceedings of 31 May 2013, that:

“the code is unique; first in the sense that no two polling stations ever have the
same code number or code. It is also unique in the sense that the code is
consciously crafted to contain information that directs you the location of the
polling station. And the system is alpha-numeric, that is to say, it combines the
letters of the alphabets and numbers, and the system is a letter followed by 6
digits and it may end or may not end with another letter.”

a.) The petitioners also complained of the use of serial numbers for
different polling stations with different results. They stated this
irregularity affected …polling stations and … votes. I have considered the
defence to this allegation that there is no constitutional or any other
statutory backing for the serial numbers, which were not generated by
the EC for any purpose except that they were created by the printers
and randomly assigned to the constituencies and onward to the polling
stations. In the absence of any such constitutional and statutory
foundations, their use as alleged by the petitioners did not amount to
any breaches such as will attract the draconian effect of being used to
annul votes affected thereby.

In the result I hold they could not be used to annul the votes in the polling
stations specified. I rather dismiss the claim based on that ground, just as my
brethren have done.

D. OVER VOTING AT POLLING STATIONS

In paragraph 44 of the affidavit filed by the petitioners (infra), they alleged over
voting took place in over 320 polling stations. I must observe that the electoral
laws of the land, the Constitution itself or any other enactment, did not define the
term. The petitioners pleaded over voting as an irregularity in the conduct of the
elections and said it tainted the results and invited the court to so find and annul

74
 effective democracy; Longley v. Canada (Attorney General), 2007 ONCA
852,88 O.R. at para, 64 .”
Mr Addison also referred to the South African case of New National Party v
Government of the Republic of South Africa and Others (CCT9/99) [1999]
ZACC 5; 1999 (3) SA 191; 1999 (5) BCLR 489 (13 April 1999).The impugned
provisions prescribed that, pursuant to the Electoral Act, No. 73 of 1998, South
African citizens otherwise entitled to vote could only participate in the 1999
elections if they possessed and produced one of two identification documents when
voting: either a bar-coded identification card or a temporary identification card
(TIC).

The Constitutional Court, per Yacoob J, held:

“But the mere existence of the right to vote without proper

arrangements for its effective exercise does nothing for a democracy;
it is both empty and useless. The Constitution takes an important step
in the recognition of the importance of the right to exercise the vote
by providing that all South African citizens have the right to free, fair
and regular elections. It is to be noted that all South African citizens
irrespective of their age have a right to these elections. The right to
vote is of course indispensable to, and empty without, the right to free
and fair elections; the latter gives content and meaning to the former.
The right to free and fair elections underlines the importance of the
exercise of the right to vote and the requirement that every election
should be fair has implications for the way in which the right to vote
can be given more substantive content and legitimately exercised.
Two of these implications are material for this case: each citizen
entitled to do so must not vote more than once in any election; any
person not entitled to vote must not be permitted to do so. The extent
to which these deviations occur will have an impact on the fairness of
the election. This means that the regulation of the exercise of the right
to vote is necessary so that these deviations can be eliminated or
restricted in order to ensure the proper implementation of the right to
vote.”

153
investigation as the running mate of the 1st petitioner and also as a
person with proficiency in statistics.

The investigation involved examination of the statement of poll and

Declaration of the Result of the Office of president (“pink sheets”) of
the polling stations.

According to him, the polling stations results as captured on the

“pink sheets” constitute the “primary evidence” upon which the
election results were declared. The pink sheets were given to
representatives of the 1st petitioner as required by Regulation 36(3)
(b) of C. I. 75.

It is as a result of the investigation that the six main categories of

constitutional/statutory violations, commission irregularities and
malpractices were uncovered.

It is their case that these irregularities create opportunities for

electoral malpractices.

The 2nd

194
register, ballot booklets, proxy voters list and the Biometric verification device
before he opens the ballot box to sort and count the ballots.

However I am not convinced that no entry in B1 by itself is evidence of over-

voting without establishing the number of registered voters at the polling station.
The number of registered voters could be easily verified or ascertained from the
Voters register of the particular polling stations which every candidate /Party had
copies. Having procured the number of voters on the voters register, then the
Petitioners should demonstrate the occurrence of over-voting by using any of the
definition of over-voting as defined variously by the parties. The Petitioners having
failed to provide such evidence cannot legitimately claim the absence of any entry
in B1as evidence of over-voting.

There were also instances where C1 or the whole of C columns were blank and the
Petitioners claim this was also evidence of over-voting but for the reasons given
above there is no empirical evidence to show this was the case.

Furthermore some of the Pink sheets under the MB-C series were not full pink so
there was no basis for determining whether there was over-voting or not. The
2ndPetitioner said under cross-examination that he deleted 53 of such pink sheets
from the list after giving evidence.

We take judicial notice of the factthat there was immense pressure on the presiding
officers, election officials and even the polling and counting agents on the day of
the elections, the majority of whom has no previous experience in election
procedures. The EC officials and presiding officers may have made some clerical
errors; but there is no evidence upon which mischief or advantage can or should be
attributed thereto. This is not a phenomenon peculiar to Ghana alone.

166
In Opitz vs. Wrzesnewskyj SCC 55, ([2012] 3 S.C.R. in which the Supreme Court of
Canada held as follows in paragraph 46:

(46) ‘The practical realities of election administration are such that

imperfections in the conduct of elections are inevitable. As recognized in
Camsell v. Rabesca, [1987] N.W.T.R. 186 (S.C.), it is clear that “in every
election, a fortiori those in urban ridings, with large numbers of polls,
irregularities will virtually always occur in one form or another” (p. 198). A
federal election is only possible with the work of tens of thousands of
Canadians who are hired across the country for a period of a few days or, in
many cases, a single 14-hour day. These workers perform many detailed
tasks under difficult conditions. They are required to apply multiple rules in
a setting that is unfamiliar. Because elections are not everyday occurrences,
it is difficult to see how workers could get practical, on-the-job experience.”

One other factor which was lacking and need to be mentioned is the absence of a
complaint. The Petitioners led no evidence on events at the polling stations except
by one affidavit evidence of one Peter Awuni a parliamentary candidate for the
NPP, that the 2nd Petitioner annulled the results of Kuligona, Nanyeri, Bongni and
Langbesi Police Station polling stations, in the Nalerigu- Gambaga constituency
because the ballots counted at the polling stations exceeded the number of persons
verified by the BVD by one or two people.

Mr Tsikata submits that:

“[t]he Petitioner fails to appreciate that in the absence of any person being
even alleged to have voted twice or illegally, or any person having been
identified as having made a complaint of over-voting, whether formally or
informally, merely invoking entries on the administrative portion of pink
sheets which have been shown to contain errors cannot meet the burden of
proof on the Petitioners. His testimony continues to dwell exclusively on
these administrative entries.”
Mr Lithur also submits:

167
“In determining whether or not there was over voting in the December 2012
election, in terms of Petitioners’ definition, it is important to note that Petitioners
have neither challenged the tallied results at the polling stations nor do they
challenge the collation of the results at constituency collation centres. Their case,
as stated on numerous instances including in the 2nd Amended Petition and also in
their oral testimony in court, is limited to the entries made on the voting accounting
sections of the pink sheets. The only evidence being relied on by Petitioners in
proof of over-voting, therefore are those entries,”
This brings me to the issue:

Whether the over-vote if anyshould lead to an annulment of the total votes cast at
the polling station?

This Honourable Court was invited to advert its mind to the fact that, in an election
at a polling station shown to have been affected by over-voting, it is not possible to
determine which of the votes cast constitutes the invalid votes and, therefore,
which votes cast count as the lawful votes. The practice, therefore, has been to
annul all the results of the polling stations where they are proven to have occurred

I do not subscribe to this suggestion and its application in this case. In seeking to
annul votes, it needs to be clear which polling stations are being called into
question. The confusions about exhibits have 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. Moreover the few instances of over-
voting that was demonstrated during the hearing, going by the average of those
votes; there is no mathematic chance that the results in those polling stations would
change the outcome of the results at the polling station. Even if the aggregate of
the actual over-vote in polling stations where over votes is established and
proportionally deducted from the votes of each candidate, it would not affect the
results. Even if they are deducted from the winning candidate’s vote it would still
not affect the votes.
168
My brethren who took the position that there was over- voting and so the votes are
to be annulled for a re-run of polls in the affected were unable to ascertain and
provide the total number of over votes from the pink sheets for me to change my
position on this claim.

The Petitioner could not establish to my satisfaction whether the number of votes
cast in these polling exceeded the number of registered voters as indicated in the
Voters Register. They had copies of those registers but only produced one to show
there was double registration at the Mampong Anglican School.

The Petitioners have not led sufficient evidence for me to come to the conclusion
that there was clearly a mathematical chance that the results could change then the
votes would have to be annulled and a re-run held. But then in many instances the
over-voting was either one or two, and certainly that cannot lead to annulment of
the entire votes.

Dr Bawumia referred to a statement made by Dr Afari-Gyan before the election

that if the ballots are counted at the end of the day and it is found that even one
ballot exceeds what was issued to voters verified to vote; the results of that polling
station would be annulled.

I find this pronouncement disturbing as it is not based on any statute or any

constitutional instrument made by him as he is empowered to do under Article 51
of the Constitution. The directive that an over vote by one ballot would invalidate
the whole results of a polling station when despite the over vote a winner is clearly
ascertainable, is contrary to both the letter and the spirit of the Constitution and
contravene articles 42 on the right to vote.

In Tehn-Addy V Electoral Commission [1996 – 97] SCGLR 589

169
Acquah JSC (as he then was) at page 594:

“Whatever be the philosophical thought on the right to vote, article 42 of the

1992 Constitution of Ghana makes the right to vote a constitutional right
conferred on every sane Ghanaian citizen of 18 years and above.
As a constitutional right therefore, no qualified citizen can be denied of it,
since the Constitution is the supreme law of the land.
Article 45 entrusts the initiation, conduct and the whole electoral process on
the Electoral Commission and article 46 guarantees the independence of the
Commission in the performance of its task. A heavy responsibility is
therefore entrusted to the Electoral Commission under article 45 of the
Constitution in ensuring the exercise of this constitutional right to vote. For
in the exercise of this right, the citizen is able not only to influence the
outcome of elections and therefore the choice of a government but also he is
in a position to help influence the course of social, economic and political
affairs thereafter. He indeed becomes involved in the decision-making
process at all levels of governance.”
The underlined words above informs my opinion that this directive cannot override
a constitutionally protected right to vote.

I respect the views and the authorities cited by Mr Addison, to support the
Petitioner’s request to annul the polls in polling stations where there is proof of
over-voting.

He referred to the dictum of the Us Supreme Court in the case of Reynolds v. Sims
377 US, 533, 555, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) which is to the effect
that:

“The right of suffrage can be denied by a debasement or dilution of the

weight of a citizen’s vote just as effectively as by wholly prohibiting the free
exercise of the franchise.”

170
I absolutely affirm the concept that over voting debases and dilutes the weight to
be accorded each individual vote. So where in Lamb v. McLeod (1932) 3WWR
596,cited by counsel the subject matter of the complaint was the validity of 17
votes in an election where the margin of victory between the candidates was only
5, the court rightly in my view annulled the votes on the grounds, inter alia, that:

“It cannot be said that there was an electing of a Member of Parliament by

the majority” as the intrusion by wrongdoers made “it impossible to
determine for which candidate the majority of qualified votes were cast”.

However, it is my considered opinion that with the margins of over-vote involved

in each of the impugned polling stations, it was possible to determine the winner
at each polling station where over-voting occurred and accordingly Lamb vs.
Macleod is inapplicable to this case.

The Plaintiffs have not been able to discharge the burden of persuasion in
accordance with the Evidence Act. Accordingly I would also dismiss this category
of irregularity.

SAME SERIAL NUMBERS

This head of irregularity does not violate any statutory regulation.

The claim under this head is stated in Paragraph 20 Ground 1(b) of the 2nd
Amended Petition as follows:

“That there were widespread instances where there were the same serial
numbers on pink sheets with different poll results, when the proper and due
procedure established by 2nd Respondent required that each polling station

171
 have a unique serial number in order to secure the integrity of the polls and
the will of the registered voters.”

According to Petitioners, the serial number is the only security feature which is
pre-embossed on the pink sheet from the printers. The polling station name and
polling code is entered in the space provided on the form by hand by the presiding
officer. Once a pink sheet is filled the serial number locks the polling station name
and code to that polling station for good. However Dr Bawumiaadmitted under
cross examination that the complaint relating to the serial numbers was not derived
from any constitutional or statutory infraction but as the numbers was huge they
were serious and inferentially must have affected the outcome of the elections.

He said the use of duplicate serial numbers was a major ‘instrument’ for the
perpetuation of the constitutional statutory violation of the law, irregularities and
malpractice in this election.

It happened that two sets of pink sheets for the presidential elections were printed.
Dr Afari-Gyan explained that the order for printing was made before the filing of
nominations and balloting for positions on ballot papers was done. He said they
wanted space for 18 names and this was divided into two sets, in anticipation that a
lot of candidates will file nominations. As it happened only 8 candidates
successfully filed their nomination papers. So after the balloting for position the
EC informed the printers who printed the 8 names on both sets.

Instead of distributing one set, the EC unwisely distributed the booklets randomly
and hence two sets of pink sheets with the same serial numbers were found at
different polling stations.

172
There was much wrangling between counsel for the Petitioners, Mr Addison, and
Dr Afari-Gyanover the significance of pre-embossed serial numbers on the pink
sheets by the printers. According to counsel, in order to guarantee the security of
electoral materials, it has been the practice of the EC among other measures to pre-
emboss electoral materials with unique serial numbers. As a result ballot papers,
ballot boxes tamper proof envelopes, stamps and the pink sheets have pre-
embossed serial numbers.

Dr Afari-Gyan, on the other hand said, whereasRegulation26 (2) of CI 75 requires

that numbers are printed on every ballot paper, there is no such requirement for the
printing of pink sheets. The serial numbers on the pink sheets are generated by the
printing firm to enable the EC to keep count of the number produced. He said the
pink sheets are distributed randomly He said the serial numbers has absolutely no
relevance to the compilation and declaration of result as polling stations are
identified by their unique codes

Dr Afari-Gyan explained further that, if two polling stations have pink sheets with
the same serial number that will in no way have any effect on the validity of the
votes cast. As each of the two polling stations will have different polling codes and
names. They will have a different voter’s register, different presiding officers,
election officials and polling agents, and different results. When the results are
taken from the polling stations to the collation centres, they are dealt with on the
basis of polling stations codes and not serial numbers.

A cursory check of the pink sheets confirms that the polling stations concerned
have different identities, different numbers of registered voters, different results,
and different election officers and polling agents. Accordingly I do not see how
with the explanation by the EC as to how two sets of pink sheets were printed and

173
randomly distributed could affect votes cast at different polling stations. Even
though it was suggested by the petitioners that any one up to mischief can sit in his
or her house and fill in the duplicate pink sheets with correct polling station code
and name and sign them; this is farfetched as the pink sheets are filled in the open
at the polling stations in full glare of the public and endorsed by the agents and the
agents receive a duplicate copy thereof there and then, and so there is no
opportunity for any swap to take place. The pink sheets tendered by the Petitioners
were collected from their polling agents present at the polling station. There was
no suggestion of a swap of pink sheets at the trial under this head of claim.

Although the handling of the order of printing of the pink sheets and its random
distribution is not the best of administrative decisions, the petitioners have not
shown in any way as to how it interfered or compromised the vote. I will therefore
without hesitation dismiss this head of claim as baseless.

22 UNKNOWN POLLING STATIONS

Before voting day, the EC gave the political parties and the independent
presidential candidates a list of 26,002 polling stations in which elections were
tobe conducted. The petitioners in scrutinizing the pink sheets claimed they
discovered that voting occurred in 22 polling stations which were not included in
the list of the 26,002 polling stations supplied them by the EC.

The EC denied this claiming the presidential results were declared on the results
from 26, oo2 polling stations. The reason why the Petitioners described them as
unknown is because polling codes and polling station names in some instances
were wrongly quoted. The EC was able to identify those polling stations In respect

174
the original pink sheets, which are the official primary records of the election. The
pink sheets being duplicates, they are as good as the originals, unless their
authenticity is successfully challenged.

There being no such challenge, the fact that Dr. Bawumia was not present at any
of the polling stations from whose results were captured on the pink sheets, does
not detract from the admissibility of his testimony in respect of the pink sheets.
To put it bluntly, as I saw and heard Dr. Bawumia as he gave his evidence on oath
in the witness box my impression about him was that he was a witness of truth.
He frankly admitted salient facts and answered questions put to him freely and
unhesitatingly.

I like to consider another point raised by the respondents which I think bordered
on the credibility of Dr. Bawumia. The first was that he said polling agents were
mere observers at the polling stations. I think he underestimated the role of
polling agents at elections; they were more than that. Polling agents are
appointed and assigned specific functions to perform at elections under C.I.75.
They act under an oath and when they breach their oaths or perform their duties
willfully, they suffer penalties for that; (see Regulation 19 of the Public Elections
Regulations, 2012, C.I.75).

Secondly, the respondents submitted nobody complained at the polling stations

that infractions took place there during the voting and the polling agents signed
the pink sheets to demonstrate their approval at events at the polling stations.
Studying the evidence closely, it was clear nobody complained against anything at
the polling stations, but I do not infer from that that the petitioners had no basis
to complain. As Dr Bawumia said the polling agents only signed to acknowledge
what took place there but not as to its legality or that everything was done
regularly.

Where it is shown that relevant legislation and regulations governing elections

were breached in the course of voting, the fact that polling agents did or did not
complain against the events or signed pink sheets would not invalidate that which
was invalid, or regularize that which was irregular. The result would be that the
evidence on record will be evaluated for its probative value to be assessed.
86
 It was said in the KPMG report that paragraph 44 of the affidavit of the
second petitioner alleged 320 pink sheets were filed but 318 Exhibits were
counted in the Exhibit MB-C- series: see Appendix A.1: Report Summary of Pink
Sheet Count: see Page 5 of the KPMG Report. Appendix A.2.1 contained the
details of data captured for the MB-C Series of exhibits in the paragraph stated.
The summary stated clearly there was a difference of two pink sheets in support
of the allegation of over-voting.

The respondents did not impugn that these were documents in support of
allegations of over voting. In the law of evidence, documentary evidence prevails
over oral evidence: Fosua & Adu-Poku v Adu-Poku Mensah [2009] SCGLR 310.
The reason is not far to see. Documentary evidence if not challenged, is often the
best proof of matters in controversy. In fact it should prevail over oral evidence.

I have read the evidence of the second respondent several times over and on
some occasions, he impressed me as telling the truth; one was when he readily
conceded that working with a large number of personnel who were trained over a
very short period of time, blunders were bound to occur; blunders did in fact
occur which he explained was more of arithmetical errors than deliberate or out
of mischief. But it was on the basis of these errors that he declared the results.
These errors he also labeled ‘excess votes’. So ‘arithmetical errors’, ‘trans-
positional errors’, ‘excess votes’ and the result is over-voting. Mr Asiedu Nketia
even spoke of ‘unidentified materials in the box’ whatever he meant by that. My
observation is that in these proceedings no party had an exclusive monopoly over
‘arithmetical challenges’ or any other such challenges.

There was credible evidence that where there was proof that there was over
voting, the Electoral Commission annulled the votes at the particular polling
station. This step by the commission was justified because they apparently were
violations of statutory provisions quoted above in this opinion. That much was
also admitted by the second respondent; he only sought to mitigate the effect of
these errors when he made a half hearted effort by saying that he was not made
aware of those cancellations and if he had been he would have checked the
records further before cancelling the results. The fact that they had been

87
cancelled for over voting was not doubted; by that the second respondent set an
example he ought to follow wherever there was an over-voting.

I am of the view that our electoral laws will be given a lot of impetus and strength
and respect if they are given teeth to bite and all breaches are given uniform
treatment; what is good for the goose is equally good for the gander. Reduced to
simple practical terms polling stations where over voting took place the results
were cancelled, and there was no reason why the same thing ought not to be
done to where the same thong took place.

My overall assessment of the evidence on the ground of over-voting is that the

petitioners proved their case on the preponderance of evidence and that looking
at the weight of the votes affected by that irregularity, it affected the outcome of
the results so much that I have no option other than annulling those votes and I
do so annul them.

E. VOTING WITHOUT PRIOR BIOMETRIC VERIFICATION

The petitioners pleaded in their paragraph 29 of the affidavit by Dr Bawumia that:

“29. That equally, prior to the December 2012 elections, and after the enactment
of C.I. 75, Regulation 30 (2) which provides ‘The voter that shall go through a
biometric verification process.’ Before being allowed to vote, the second
respondent issued the following directive ‘NVNV’ . This again is to protect the
integrity of the voting register, and the entire elections. The Chairman of the
Electoral Commission stated it and four polling stations had their votes annulled
for ‘No verification no vote’ at the Nalerigu-Gambaga constituency, Kutre (No 1)
polling station, Code Number G 124201.”

The second respondent submitted that the petitioners did not produce a single
piece of evidence of anyone voting without being biometrically verified. Thus the
issue arose as to whether or not anybody voted without a prior biometric
verification and the burden of proof of this fact was cast on the petitioners.
88
Voting after a biometric verification was governed by Regulation 30 of the Public
Elections Regulations, 2012, C.I, 75. It is not a long provision and I would like to
quote the whole of it here. It was that:

“30 (1) A presiding officer may before delivering a ballot paper to a person who is
to vote at the election, require the person to produce

a) a voter identification card, or

b) any other evidence determined by the Constitution

in order to establish by fingerprint or facial recognition that the person is the

registered voter whose name and voter identification number and particulars
appear in the register.

(2) The voter shall go through a biometric verification process.”

Everything Biometric, registration and verification, burst on to the Ghanaian

electoral landscape only just recently. It followed a thorough debate by political
parties as a result of lots of agitation and clamor for reforms in the system so as
to generate public confidence and integrity in the electoral system by checking
impersonation, multiple voting and provide a quicker method of registering
voters, amongst others. On the voting day, after a voter had gone through the
essentials in Reg. 30 (1), then he was required to go through a biometric
verification exercise.

I am persuaded that regulation 30 (2) of C.I.75 was a mandatory provision in our

enactment regulating the conduct of elections in the country. Regulation 30 (2)
(supra), stated that biometric verification is a process to verify the identification
of a voter which may involve fingerprint or facial recognition that the particular
voter standing or appearing before the presiding officer, is the person whose
name and voter identification number and particulars appear in the register.
Biometric verification is only by the use of an electronic device called the
biometric verification device (bvd) or equipment, interpreted in C.I. 75 as:

89
47. (1) “biometric verification equipment” means a device provided at a polling
station by the Commission for the purpose of establishing by finger print the
identity of the voter.”

It was gratifying to learn that exceptions were made to the application of the
mantra for it was readily recognized that there was an inherent limitation to the
use for either through an act of God or natural causes over which no one had any
control or any other cause like human activity, many a people may either have no
fingers at all, like lepers and amputees, accident victims, called ‘those with
permanent trauma’; some may have finger prints which could not be captured by
the biometric verification device like those whose fingers prints have been worn
out with age or repeated human activities like the use of that part of their
members. The law made room for these people so they did not lose the franchise
for any reason whatsoever.

The Electoral commission crafted a special dispensation for them and they were
identified by their face only and labeled ‘FO’. The letters ‘FO’ were inscribed
against their names in the register, but even such persons had to undergo a form
of biometric information. ‘FOs’ had to swipe the barcode on their voter’s identity
card through the biometric verification device. Successful verification thereafter
occurred where the photograph of the ‘FO’ popped up. When this happened then
to all intents and purposes such a person was deemed biometrically verified so
there would be no need to proceed further to ask that voter to still put a finger on
the device. He would proceed to vote by casting his ballot for his/her preferred
candidate.

All witnesses before this court testified on this and sang the same song in court to
underscore the veracity in it. Dr Bawumia said there were about 700 of such
people in the country, Dr. Kwadwo Afari Gyang said that figure was an
understatement for they were more than that.

The second respondent referred to the Public Elections (Registration of Voters)

Regulation, 2012, C.I. 12, and submitted that sub-regulation 12 stated that

90
 “A registration assistant shall capture the biometric data made up of the ten
finger prints and the photograph of the head, showing the face and two ears
without any obstruction of the applicant”

Also, sub-regulation (9) stated that

“the Commission shall make alternative arrangements in relation to biometric

data for a person who has no fingers.”

Regulation 31 explained that

“bio-data refers biographic and biometric information of a person required for

the purpose of establishing that person’s identity.”

The second respondent submitted that in view of these provisions biometric

verification could not be limited to only finger prints.

I am unable to agree with that submission. A reading of regulation 30 of C.I. 75

shows that the voter shall mandatorily go through a biometric verification process
by a biometric verification equipment for the purpose of establishing the identity
of the voter by finger print. In order to ensure that those who through no fault of
theirs have no fingers at all, or have fingers but whose finger prints could not be
taken for one reason or the other, special provisions/arrangements were made
for them. Those voters are labeled ‘FOs’ and are excused from undergoing
biometric verification by the equipment.

I note there was a difference between ‘identifying’ and ‘verifying’ a voter. I agree
biometric verification is a process under our electoral laws. It begins with the
process in regulation 30(1) and continues at regulation 30(2). The two provisions
mention identification and verification of voters and truly they are to be read as
forming one scheme even though it is a process involving several steps, voters are
verified with biometric verification devises which establishes the identity of the
voter by his her fingerprints.

Apart from them I do not know of any other exception recognized by statute or
regulation. It would therefore be wrong for anybody advocating that there could
be voting without verification biometrically, where even the machine failed to
91
function. Evidence put before this court had it that when political parties
suggested this could be done the suggestions were rejected. Other persons
including chiefs who made similar suggestions were equally rebuffed. My heart
missed a beat when Dr Afari Gyan said if a chief popular in the area appeared at a
polling station to vote, he could be excused from undergoing biometric
verification. He did not provide data of those who benefitted from that
dispensation and it could safely concluded that it did not happen, for it was
wrong, dangerous to accept and follow.

I am satisfied from the KPMG Report that in Appendix A.2.9, Details of data
capture for MB-L Series of Exhibits, 382 pink sheets were counted.

I conclude on the issue of voting without biometric dispensation that where

power is conferred, it ought to be exercised in terms of the enabling statute.
Anything done outside the power stands the risk of being affixed with the ultra
vires stamp and declared null and void: see Apaloo v E.C. [2001-2002] SCGLR 1, at
14; Nii Tetteh Opremreh v E.C. [2001-2002] SCGLR 1159;

The petitioners were obliged to give evidence to prove their allegation that
people voted without going through biometric verification. Dr. Bawumia stated
the evidence is on the face of the pink sheet, tendered in evidence, marked and
stamped with the commissioner of oaths stamp. They were tendered in evidence
and accepted without any objection. They were photocopies of the originals,
which were in the custody of the second respondents.

It may be asked, how does the biometric verification device (bvd) infringe on the
right to vote? The onus is on those alleging the infringement to establish it. There
is a presumption of regularity of legislation until it is proved otherwise. Article 63
(2) of the constitution emphasizes that presidential elections shall be based on
universal adult suffrage; the biometric verification device ensures that voting is
done by universal adult suffrage. Therefore it promotes the enforcement of the
principle of universal adult suffrage.

Whether or not anybody voted without biometric verification is an issue of fact.

92
The petitioner sought to prove their case by relying on the contents of the pink
sheets tendered in evidence. He pointed to column C3 of the pink sheet and the
entry made as to the number of voters who voted without being verified by Form
1C, or the biometric verification device (bvd) machine. On the other hand the
respondents did not tender any pink sheet to counter the case for the petitioners.
They gave evidence through Dr. Afari Gyan who said when it was suggested voters
could be allowed to use the card in Form C1 to vote for it was generated from
data collected by the EC but was lost through no fault by the voters but rather by
the EC. This was because the EC. did not want any voter to lose his/her franchise,
or, her right to vote. However political parties strenuously opposed the idea till
the EC agreed to stick to the idea of voting only by the biometric verification
process. He then said he told the presiding officers not to fill the column 3C on
the forms.When Dr. Afari Gyan was asked how he gave that instruction to the
presiding officers not to fill column C3, he could not tell positively. In my
assessment of his creditworthiness on this wise, I found him wanting. I gave him
zero marks. The conclusion I came to was that no such instructions were given to
the presiding officers and they filled the pink sheets as truthfully as they could. I
therefore found no reason to disbelieve the evidence of Dr. Bawumia. I accept
and find that some voters voted without undergoing the biometric verification.
Again, I think they should have to challenge the veracity of the genuineness of
what the petitioners tendered in evidence. If it is considered that the second
respondent had custody of all the pink sheets and only gave photocopies to the
parties according to Regulation 36 (3) of C.I. 75, then the petitioners’ pink sheets
tendered in evidence remained the only evidence before the court, and their
authenticity could not be impugned by the respondents. The pink sheets in
evidence provided the best evidence of what transpired at the polling station in
the absence of better evidence must be accorded the best regard. Their contents
are conclusive of the facts in issue, and no oral evidence is admissible to add to,
subtract from or vary them.

Arguing in support of this legal point, the appellants relied on Section 25 (1) of the
Evidence Act which provided that:

93
“Except as otherwise provided by law, including a rule of equity, the facts recited
in a written document are presumed to be true as between the parties to the
document, or their successors in interest.”

This means that after filing the numbers of pink sheets and given oral evidence in
support, the onus shifted to the respondents to lead evidence to challenge it or to
leave doubts on the existence of those facts.

I believe that the petitioners have the duty to prove the irregularity alleged, and
also that they affected so many polling stations. In their effort to discharge this
burden they gave evidence relying on the face of the pink sheet. In column ‘c’
figures were to be filled as to the number of voters who voted without being
verified biometrically. The evidence supplied was that where figures were not
written but were only left blank, that was an attempt to cover over voting, or any
other irregularity. A blank space therefore was construed to mean zero. In Table
10 B of Volume 2B, Page 360 it was stated that 223 polling stations were affected,
and it covered the various categories. The total number of votes affected was 93,
273. Forty three (43) of these polling stations were in the over voting category
alone. I must be quick to state that I do not think the construction by the
petitioners that a blank means zero can be correct, for I did not see any real
justification for that; I simply reject that interpretation by the petitioners.

In evaluating the evidence by the petitioners, I note that when the petitioners
were ordered by the court to provide further and better particulars on the
allegation of voting without biometric verification, they stated the irregularity
took place at 2,279 polling stations. However, by the close of trial and addresses
stage, they deleted 148 of them from the list relied on 2,131 polling stations. I
have said these reductions in figures did not prove fatal to the petitioners’ case
and will be considered by the court.

In the result, I declare that all votes cast at the 2012 presidential elections which
were affected by this irregularity of voting without prior biometric verification are
nullified.

94
ANNULLING ELECTION RESULTS BASED ON IRREGULARITIES

I now consider some of the principles upon which a court considers whether or
not to annul an election results have been discussed in several cases and a few
will be considered.

In Re Election of First President – Appiah v The Attorney General, 1970, reported

at pp 1423-1436, A Sourcebook of Constitutional Law of Ghana, Bannerman
Acting.C.J said, citing Medhurst v Lough Casquet [1901] 17 LTR 210, where
,Kennedy J said (at p 230) that:

“An election ought not to be held void by reason of transgression of the law
committed without any corrupt motive by the returning officer or his subordinate
in the conduct of the election where the court is satisfied that the election was,
notwithstanding those transgressions, the election, an election really and in
substance conducted under the existing election law, and that the result of the
election, that is the success of the one candidate over the other was, or could not
have been affected by those transgressions. If on the other hand the
transgressions of law by the officials being admitted, the court sees that the effect
of the transgressions was such that the election was not really conducted under
the existing election laws, or it was open to reasonable doubt whether these
transgressions may not have affected the result and it [was] uncertain whether
the candidate who has been returned has really been elected by the majority of
persons voting in accordance with the laws in force relating to elections, the court
is then bound to declare the election void. It appears to us that this is the view of
the law which [was] generally been recognized and acted upon by the tribunals
which have dealt with election matters.” And again the judgment in the case of
Woodward v Sarsons 1875 32 L.T(NS) 867 at pp. 870-871; L.R. 10 C.P. 733: “…we
are of opinion that the true statement is, that an election is to be declared void by
the common law applicable to Parliamentary elections, if it was so conducted that

95
investigation as the running mate of the 1st petitioner and also as a
person with proficiency in statistics.

The investigation involved examination of the statement of poll and

Declaration of the Result of the Office of president (“pink sheets”) of
the polling stations.

According to him, the polling stations results as captured on the

“pink sheets” constitute the “primary evidence” upon which the
election results were declared. The pink sheets were given to
representatives of the 1st petitioner as required by Regulation 36(3)
(b) of C. I. 75.

It is as a result of the investigation that the six main categories of

constitutional/statutory violations, commission irregularities and
malpractices were uncovered.

It is their case that these irregularities create opportunities for

electoral malpractices.

The 2nd

194
Admittedly, when the 2nd petitioner was in the box, and was
confronted with a number of “pink sheets” and asked to indicate
whether on their face there was any basis for saying there was over-
voting, he answered there was none.

They also included “pink sheets” on which A1 or B1 has a blank

interpreting this to mean zero.

I do not consider this interpretation as a valid basis in proof of over-

voting.

The polling stations affected are to be excluded from the polling

stations to be affected by the over-voting category as indicated in
volume 2B of the written address of counsel for petitioners using
Respondents preferred Data set.

After the written addresses have been filed, counsel for parties were
given the opportunity to react to the filed addresses but the figures
were not disputed.

ABSENCE OF PRESIDING OFFICER’S SIGNATURE

Article 49 of the 1992 constitution sets out voting at election and

referenda

“(1) At any public election or referenda, voting shall be by secret

ballot.

207
(2) Immediately after the close of the poll, the presiding officer
shall in the presence of such of the candidate or their
representative and their polling agents as are present, proceed
to count, at that polling station, the ballot papers of that
station and record the votes cast in favour of each candidate
or question.

(3) The presiding officer, the candidate or their representative and

in the case of a referendum, the parties contesting or their
agents and the polling agents if any, shall then sign a
declaration stating

(a) the polling station, and

(b) The number of votes cast in favour of each candidate or

question, and the presiding officer shall, there and then
announce the results of the voting at that polling station
before communicating them to the returning officer.”

The petitioners claim under this head is that in a number of polling

stations, the results of which were declared, the presiding officers
did not sign the “pink sheets’. It is their case that the signature is
crucial because it is a mandatory constitutional requirement but
not an administrative directory.

In all the petitioners were relying on 924 pink sheets which they
presented to DR. AFARI-GYAN who admitted them. He also
conceded that 905 more “pink sheets” were unsigned. Among these
are 191 included in the petitioners’ 924.

208
The pink sheets without the presiding officers’ signatures therefore
came to 1,638 involving 659,814.(sic)

The constitution, mirrors the will and aspirations of the Ghanaian

people and it is the supreme law of the land.

Article 1 speaks of the supremacy of the constitution.

1 (1) states that –

“The sovereignty of Ghana resides in the people of Ghana in

whose name and for whose welfare the powers of government
are to be exercised in the manner within the limits laid down
in this constitution.

(2) This constitution shall be the supreme law of Ghana and

any other law found to be inconsistent with any provision of
this constitution shall, to the extent of the inconsistency, be
void. The preamble of the constitution states that:

“IN THE NAME OF THE ALMIGHTY GOD

We the people of Ghana;

IN EXERCISE of our natural and inalienable right to establish

a frame work of government which shall secure for ourselves
and posterity the blessings of liberty, equality of opportunity
and prosperity;

209
 IN A SPIRIT of friendship and peace with all people of the
world; AND IN SOLEMN declaration and affirmation of our
commitment to Freedom, Justice, probity and Accountability;

The principles that all powers of Government spring from the

sovereign will of the people;

The principle of universal Adult suffrage;

The rule of Law;

The protection and preservation of Fundamental Human

Rights and Freedoms, Unity and Stability for our nation;”

DO HEREBY ADOPT, ENACT, AND GLUE TO OURSELVES

In the Interpretation Act, of 1960, section 27 states that –

In an enactment made after the passing of this Act, “shall”

shall be construed as imperative and -----

Article 49 (3) therefore imposes an obligation on the presiding

officer to sign before the declaration of the results. The reason for
this cannot be far fetched. He must sign to authenticate the

210
results. If he does not sign, but goes ahead to declare the results,
what will be their probative value?

DR. Afari-Gyan told the court that failure to sign is an irregularity.

He did not go ahead to say what flows from this irregularity.

What is an irregularity?

In the case of BORYS WRZESNEWSKYJ VRS TED OPITZ,

ATTORNEY-GENERAL OF CANADA, MARC MAYRAND (CHIEF
ELECTORAL OFFICER) and ALLAN SPERLING (RETURNING
OFFICER, ETOBICOKE CENTRE)

AND KEITH ARCHER (CHIEF ELECTORAL OFFICER OF BRITISH

COMBIA)

The court by a majority of 4-3 allowed the appeal because the

Appellant sought to have voters of several Canadian citizens
disqualified on account of administrative mistakes notwithstanding
evidence that those citizens were entitled to vote.

In the dissenting opinion, the court said –

“Irregularities should be interpreted to mean failures to

comply with the requirement of the Act, unless the deficiency
is merely technical or trivial. For ‘irregularities’ to have
affected the result of the elections,” they must be of a type that

211
 could affect the result of the election and impact a sufficient
number of votes to have done so……..”

If the presiding officers failed to sign the pink sheets, that

constituted infringement of Article 49 (3) of the constitution and to
me that is fatal. It renders the result declared null and void. In the
Apaloo case, the Gazette Notice issued by the Electoral Commission
in infringement of the Constitutional Instrument was declared null
and void. What then happens to the results declared by the
presiding officers in contravention of Article 49(3) by failure to sign
the pink sheets?

The 2nd respondent told the court, that in spite of the failure to sign,
he will accept the results because the polling Agents did sign. What
is the role of the polling Agent at the polling station?

Under cross-examination by counsel for petitioners, this is what

transpired;

Q. You are aware that the functions of a polling agent are

strictly circumscribed?

A. My Lords, I would say so.

Q. They are not election officials?

A. In the strict sense of term, no.

212
 Q. I would like you to read Rule 19(4) of C.I. 75?

A. WITNESS READS OUT.

Q. So I am suggesting to you that it is not the business

of the polling agents to supervise the work of the
election officials but to observe the conduct of the
poll?

A. My Lords, I agree that the agent is not supposed to

supervise but he plays an active role at the station.

At the pages 25-26 of the record of proceedings for the same day,
Dr. Afari-Gyan made the point about the very limited role of polling
agents abundantly clear.

Q. A polling agent is not involved in the actual

administration of the election?

A. My Lords, you are correct.

Q. He does not count votes after the election?

A. My Lords no.

Q. He counts?
213
A. He does not.

Q. He also does not inspect the ID cards of persons

who are in the queue to vote?

A. My Lords No.

Q. He cannot confront anybody directly at the polling

station?

A. My Lords no and for that matter nobody can

confront anybody directly at the polling station.

Q. If he has any objection to anything happening he

has to inform the presiding officer?

A. My Lord yes.

Q. So the presiding officer is in charge of the polling

station?

A. My Lords absolutely.

214
 Q. He has the final say on any matter?

A. So far as it is connected with the election yes.

Q. In fact the presiding officer can ask the polling

agent to leave the polling station.

A. Yes if the polling agent misconducts himself or

herself.

Q. And who determines who misconducts himself, it is

the presiding officer?

A. Yes it is the presiding officer but misconduct they

are trained to know how mis-conducting oneself in a
polling station is. (sic)

The polling Agent is not an electoral officer and the fact that he has
signed the “pink sheet” cannot legalize that which is otherwise an
illegality.

If even a law properly so passed cannot co-exist with the

constitution if it is inconsistent with any provision of the
constitution, that law to the extent of its inconsistency is null and
void, how can the court give effect to that which is
unconstitutional?

215
Article 49 is an entrenched provision and parliament by itself
cannot even amend it. How can a court under the guise of
interpretation give any other meaning to 49(3) other than what is
stated in the clause. The golden rule of interpretation is that words
must be given their ordinary meaning unless same shall lead to
absurdity. The clause is clear and unambiguous and does not call
for the interpretation jurisdiction of this court. None of the
conditions as laid down in TUFFOUR VRS THE ATTORNEY-
GENERAL [1980] SCLR is present here and I would therefore not
even attempt to embark on that exercise of interpreting the “shall”
or find reasons why the presiding officer might have failed to sign.

The Respondents do not deny the failure of the presiding officers to

sign but contend that that should not be a basis for annulling
lawfully cast votes. Counsel for the 3rd Respondent submitted that
if that is done, it will mean retrospectfully punishing the voters
whose votes will be annulled through no fault of theirs.

I wholly agree with counsel in that regard. In the circumstances,

what is the way out?

THE RIGHT TO VOTE

It is provided by the 1992 constitution, Article 42 that:

“Every citizen of Ghana of eighteen years of age or above and

of sound mind has the right to vote and is entitled to be
registered as a voter for the purposes of public elections and
referenda.”
216
The EC at various stages of the election used a new technology of a Biometric
Voter Registration by the use of a biometric verification device (BVD). This
involves biometric technology, which uses computer finger-print scanners and
digital cameras to capture the bio-data of an applicant; such personal details of
finger-prints and face photo technology are used to verify the authenticity of the
voter, and to ensure greater transparency and credibility in the elections. The
Public Elections (Registration of Voters) Regulations, 2012 (C.I. 72) regulates the
procedure on registration of voters.

After conducting the election which took place on the 7 and 8 December 2012, the
Chairman of EC, Dr Kwadwo Afari Gyan announced on 9 December 2012, that Mr
John Dramani Mahama has received 5,574,761 votes (50.70% of the votes cast),
while Nana Akuffo Addo has received 5,248,898 votes (47.74%of the votes cast).
Pursuant to Article63 (9), the EC declared Mr John Dramani Mahama the President
Elect.

Subsequent to the announcement, a petition challenging the results of the

presidential elections was filed at the Supreme Court on 28 December 2012 by the
1st Petitioner Nana Akufo -Addo the presidential candidate of the New Patriotic
Party (NPP), in the 2012 elections; the2nd Petitioner, Dr Mahamadu Bawumia the
running mate of the1st Petitioner, and the 3rd Petitioner, Jake Otanka Obeitsebi-
Lamptey the National Chairman of the NPP; against John Dramani Mahama, and
the Electoral Commission as 1st and 2nd Respondents respectively. The National
Democratic Congress, the party on which the 1st Respondent stood as its
presidential candidate applied and was joined as the 3rd Respondent.

107
The Petition

The petition filed on 28 December 2012 was amended on 8 February 2013. The
Petitioners say that prior to the December elections, 2nd Respondent informed all
regional executives of registered political parties that all the results would be
received through faxes installed in the ‘Strong Room’ of the 2nd Respondent
directly from its officials from the regions and that there could be no opportunity
for tampering with the results before same were received in the ‘Strong Room’.
Petitioners say however that it came to their notice, during the declaration of the
provisional results, that the offices of Superlock Technologies Limited (STL), a
security installation and information technology company, was receiving the
results of the elections before transmitting same to 2nd Respondent in its ‘Strong
Room’. NPP hence sent a delegation to confront the STL officials whereupon they
were informed that they had a contract with EC to provide IT services which
included receiving all results of votes cast and faxed from the regional offices of
the 2nd Respondent before transmitting same to the ‘Strong Room’ of 2nd
Respondent.

Petitioners claim the said arrangement with STL was made without the knowledge
of the NPP or the Inter-Party Advisory Committee (IPAC) to which NPP belongs
and it provided an opportunity to tamper with the election results.

Petitioners also say that before the elections in December, the Chairman of the 2nd
Respondent announced to Parliament that he had registered some 1,000,000 voters
who have not been assigned to any polling station, even though the Public
Elections (Registration of Voters) Regulations 2012, (C.I. 72) requires that
registration of voters shall be carried out in designated polling stations (registration
centres).

108
Petitioners state further that the total number of registered voters after 2nd
Respondent had conducted its biometric registration exercise was a little less than
13,000,000 however this number inexplicably increased by over 1,000,000 after
cleaning the provisional register and verifying same.

Petitioners say that around the 26th of September 2012, that is about 42 days before
the presidential election scheduled for 7th December, the Chairman of the 2nd
Respondent officially announced the total number of polling stations to be
employed in conducting the elections as 26,002. This is in compliance with
Regulation 16 of C.I. 74.

The Petitioners complain that the total number of registered voters that the NPP
was furnished with was 14,031,680. However on 9th December 2012, 2nd
Respondent declared the total number of registered voters as 14,158,890. Further
on the same date, 2nd Respondent posted on its website the total number of
registered voters as 14,031,793 showing a clear disparity of 127,097. The
Petitioners also contend that the total number of registered voters for the
presidential elections exceeded that of the registered voters for the parliamentary
elections by 127,210 voters.

Petitioners say that 2nd Respondent delayed in furnishing the NPP with the final
voter’s register until just a few days before the December 2012 elections which
prevented the NPP from scrutinizing the register and this contributed in
undermining the transparency of the elections.

The irregularities emerging from the case of the Petitioners are as follows:

• Change in total number of registered voters

• Printing of ballot papers

109
• Over-voting

• Voting without fingerprint biometric verification

• Same serial numbers on pink sheets with different results

• Polling stations bearing the same polling station codes and yet with different
results

• Absence of signature of presiding officer on some pink sheets

• 28 locations where elections took place which were not part of the 26,002
polling stations created by the 2nd Respondent for purposes of the elections

• Widespread instances where figures and words of votes cast in the elections
and as recorded on the pink sheet did not match

• Padding of votes for the 1st Respondent and reducing the votes of the 1st
Petitioner.

However, by paragraph 23 of the affidavit of Dr Mahamadu Bawumia filed on

the 7th April 2013, pursuant to the directions given by the court on the 2nd
April 2013, the grounds set out in the petition were subdivided by the
Petitioners into six categories as follows:

i) Over-voting, that is to say, widespread instances of polling stations

where (a) votes cast exceeded the total number of registered voters or (b)
votes exceeded the total number of ballot papers issued to voters on voting
day in violation of Article 42 of the Constitution and Regulation 24 (1) of
C1.75
ii) Widespread instances of polling stations where there were no
signatures of the presiding officers or their assistants on the pink sheets in
clear violation of Article 49 (3) of the Constitution and Regulation 36 (2) of
C.I.75

110
 iii) Widespread instances of polling stations where voting took place
without prior biometric verification in breach of Regulation 30 (2) of C.I.75
iv) Widespread instances where there were the same serial numbers on
pink sheets with different poll results, when the proper and due procedure
established by the 2nd Respondent required that each polling station have a
unique serial number in order to secure the integrity of the polls and the will
of lawfully registered voters
v) Widespread instances of polling stations where different results were
strangely recorded on the pink sheets in respect of polling stations bearing
the same polling station code, when, by 2nd Respondent’s established
procedure, each polling station was assigned a unique code in order to avoid
confusing one polling station with another which could not be explained by
a reference to special voting
vi) Twenty three ( 23) locations where voting took place which were not
part of the twenty six thousand and two (26,002) polling stations created by
the 2nd Respondent for purposes of the December 2012 elections.

The Petitioners contend that the irregularities vitiated the presidential results in
eleven thousand nine hundred and sixteen (11,916) polling stations by four million
six hundred thousand five hundred and four votes (4,670,504).That if these votes
were to be annulled, the 1st Petitioner would get three million seven hundred and
seventy-five thousand five hundred and fifty-two votes representing 59.69% of
votes cast while the 1st Respondent gets two million four hundred and seventy-
three thousand one hundred seventy-one votes representing 39.1% of votes cast.

The Petitioners say that in circumstances the 1st Respondent did not obtain more
than 50% of the total votes cast in the election as required by Article 63 (3) of
Constitution, in order to become President and such ought not to have been
declared President. The Petitioners concluded that the 1st Petitioner having
obtained more than 50% of the votes cast ought to be declared the President of the
Republic of Ghana.

111
The Petitioners say that the irregularities were a deliberate well-calculated ploy to
assist the 1st Respondent thereby subverting the sovereign will of the electorate
contrary to the preamble of the Constitution, Articles 1(1), 42 and 63(3) of the
Constitution.

The Petitioners therefore request the Court to declare that:

1. John Dramani Mahama, the 1st Respondent was not validly elected as
President of Ghana
2. Nan Addo Dankwa Akufo-Addo, the 1st Petitioner herein was rather validly
elected President of Ghana
3. Consequential orders as to this Court may seem meet.

1st Respondent’s Answer

1st Respondent denies the allegation of the Petitioners that STL was contracted by
the 2nd Respondent to carry out the said functions in respect of the elections and
this was affirmed when a delegation of political parties led by Hon. Osafo Maafo
visited STL.

1st Respondent asserts that the difference in the figure of 13, 917,366 announced
by 2nd Respondent was provisional since 2nd Respondent had at that time not yet
registered prisoners and other voters, including those in the diplomatic missions
abroad and on peace-keeping missions, and had also not done the mop-up exercise
it undertook subsequently. He disputes any suggestion that there were some veiled
reasons in the differences in the provisional registered voters after the biometric
registration; and that the suggestion is without basis and smacks of utmost bad
faith. 1st Respondent also says that Petitioner has failed to supply them with
particulars of the manner in which the results of the presidential elections were
tampered with.
112
1st Respondent also denies that 2nd Respondent delayed in making the voters
register available to the NPP and states that the register was delivered to both
parties at the same time. He added that a common register was used for both the
presidential and parliamentary elections.

1st Respondent contends that the basis of the declaration of the results was the
aggregate of total valid votes cast which was 10,995,262.

1st Respondent rejects the irregularities canvassed by the Petitioners and states that
fingerprint verification is not the only means of verification. He contends that in
terms of Article 42 of the 1992 Constitution, failure or the inability of voters to go
through fingerprint verification should not be used to deprive voters of their
Constitutional right to vote. As such, any electoral law which has that effect is
inconsistent with the Constitution and as such unconstitutional.

1st Respondent contends the 1st Petitioner’s agents certified the results at the
polling stations without protest, and thereby accurately represented to the world
that the results accurately reflected the outcome of the election in the respective
polling stations.

1st Respondent contends that duplicate codes on pink sheets would not invalidate
the declared results of supervised elections in those polling stations and the votes
validly cast.

1st Respondent contends further that the absence of signatures on any of the pink
sheets cannot invalidate the results shown on those sheets as they were the result of
painstaking, public and transparent sorting and (re)counting at the various polling
stations with the full participation of 1st Petitioner’s agents.

113
In addition to denying the allegation of duplicate serial numbers, 1st Respondent
says that even if it were true, it did not affect the declared results of the elections.

1st Respondent says that the change in the total number of registered voters
between that given to the parties and that declared on 9th December, even if it were
true would not invalidate the elections.

He also states that as the polls were declared publicly and openly, even if there
were conflicts between the words and figures on the pink sheets that did not affect
the declared results of the elections. This is even more so as 1st Petitioner’s agents
were present at the various polling stations and did not protest.

1st Respondent disputes the table set out in paragraph 20 of Ground 3 of the
petition and states that it is the product of double counting in many instances. He
says further that the request to annul that number of votes would undermine the
fundamental rights of Ghanaians under Article 42 of the Constitution. Also any
deduction derived from that table, lacks any basis in law or in fact.

1st Respondent states that there was no ploy to unlawfully assist him to win and 1st
Petitioner is only finding an excuse for losing the elections.

2ndRespondent’s Answer

The 2nd Respondent states that there was no arrangement with STL to receive and
transfer election results. Instead STL after winning a competitive bidding was
chosen to provide services to the 2nd Respondent which included training of staff
and field support and provision of equipment including the provision of a VSAT
(Very Small Aperture Terminal) system whereby Registration Database would be

114
sent directly from the 2nd Respondent’s District Offices to the Registration
Database at its Head Office.

Also the situation of one million voters not being assigned to any polling station
was corrected.

The 2nd Respondent says that the initial provisional figure he announced was 13,
917,366 which was later changed to 14, 158, 890 after the registration of foreign
service officials, students abroad on government scholarship, other Ghanaians
working abroad in international organisations and the late registration of service
personnel returning from international peace keeping duties. After adding those
wrongly omitted, excluding those wrongly added and removing multiple
registrations, the number finally obtained was 14,031,680. He adds that the voters
register is dynamic and not static as required by Regulation 9 of (C.I. 72).

2nd Respondent states that the number of registered voters that was given to the
political parties including the NPP was 14,031,793 and that the figure of
14,158,890 stated in the declaration result was an error. The correct number of
registered voters of 14, 031,793 was duly posted on the 2nd Respondent’s website.
It states that the error would have no bearing on total votes cast and would only
affect the turnout percentage and change it from 79.43% to 80.15%.

The 2nd Respondent states that the NPP and NDC were the first to receive the final
voters register on 21November, 2012 and that the preparation of the final voters
registers was a mammoth exercise.

The 2nd Respondent also states that all the political parties, including the NPP,
received daily print outs of the registration effected at the registration centres.

115
The 2nd Respondent also states that the registers for both the parliamentary and
presidential elections had the same number of registered voters. The 2nd
Respondent states further that each voter was verified only once to cast votes for
the candidate of his choice for both the presidential and parliamentary elections.

The 2nd Respondent states further that the total number of valid votes cast is
10,995,262 and not 14,158,880 as shown in the Petition.

The 2nd Respondent claims it kept to its decision and allocated to each polling
station, 10% ballot papers that were above the number of registered voters for the
polling station. Further, during printing, representatives of political parties were
present at the printing houses that were engaged by 2nd Respondent. They were
also briefed prior to this about the statistics of the number of ballot papers that
were to be given to each polling station in booklets of 100, 50 and 25 sheets which
could not be split.

The 2nd Respondent claims that the polls were counted in the public view and
results announced publicly in the presence of the agents of the candidates. Agents
also have a right to ask for a re-count or to refuse to sign the declaration form.

2nd Respondent also states that it were only persons who were successfully
verified that were allowed to vote and this is why the elections in 400 polling
stations were postponed to the next day, when the biometric verification equipment
broke down. The EC also noted that the Commonwealth Observer Group
recommended on page 36 of their report that the requirement that elderly people be
biometrically verified should be reviewed. The ECcontends that the fact that every
voter was verified is also supported by the pink sheets.

2nd Respondent also claims that every polling station had a name and unique code.
Its examination of the further and better particulars supplied by the Petitioners
116
showed that wrong codes were quoted by the petitioners in their particulars and
also that where a polling station used for the presidential and parliamentary
election was also used for Special Voting (by Security Personnel, etc.), that polling
station kept the same code number though the Results of the Special Voting and
the results of the voting on December 7 and 8 were given separately. Thus the
request to invalidate votes should be refused as it is without merit.

The 2nd Respondent claims that of the 2,009 Pink Sheets that the Petitioners
claimed to be unsigned, 1,099 were, in fact signed by the Presiding Officer at the
polling station or, at the instance of the Returning Officer, at the Collation Centre;
905 were unsigned representing 3.5% of the total number of Pink Sheets
nationwide; and 1,989 Pink Sheets, representing 99% of the number claimed to be
unsigned, were signed by the Polling or Counting Agents of the candidates. It
could also be that the signature failed to appear as the Pink Sheets the Petitioners
had were only copies of the original.

It also claims that there was no instance where total votes cast exceeded number of
voters on the register.

It also claims that in instances where different polling stations had the same serial
number, they bore different names and code as such the request to annul those
Sheets should be rejected.

It also states that there is no explanation for how the figures in the table in ground
3 of paragraph 20 of the petition were arrived at; and above all there is no
justification for the deduction.

2nd Respondent claims further that of the three instances of over padding cited, two
were wrong and one was a transposition error in which 17 was stated instead of 97.

117
RELIEFS CLAIMED BY THE PETITIONERS

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.

GROUNDS FOR SEEKING RELIEFS

Out of abundance of caution, I will set out in extenso the particulars of the
Petitioners as set out in their 2nd amended petition from paragraphs 20,
ground I through to ground 2A, Ground 3 and all their particulars to
paragraphs 21-27 inclusive.

GROUNDS FOR CHALLENGING THE VALIDITY OF THE DECEMBER

2012 ELECTION

Ground 1

“There were diverse and flagrant violations of the statutory provisions

and regulations governing the conduct of the December 2012 presidential

241
 election which substantially and materially affected the results of the
election as declared by the 2nd Respondent on 9th December 2012.

Particulars
a. That the 2nd Respondent permitted voting to take place in many
polling stations across the country without prior biometric
verification by the presiding officers of 2nd Respondent or
their assistants, contrary to Regulation 30 (2) of C. I. 75.

b. That the voting in polling stations where voting took place without
prior biometric verification were unlawfully taken into account in the
declaration of results by 2nd Respondent in the presidential election
held on 7th and 8th December 2012.

c. That by 2nd Respondent’s established procedure, 2nd Respondent

conducted the December 2012 presidential and parliamentary
elections at polling stations each of which was assigned a unique
code to avoid confusing one polling station with another and
to provide a mechanism for preventing possible electoral
malpractices and irregularities.

d. That there were, however, widespread instances where

different results were strangely recorded on the declaration
forms (otherw ise know n as the ‘pink sheet’ or ‘blue sheet’) in
respect of polling stations bearing the same polling stations
codes.

242
Jacob Osei Yeboah 15,201 10,045 5,156 0.08
Total 10,995,262 4,670,504 6,324,758 100.0

24. Petitioners say that in some instances, votes earned by the

1st Petitioner were unlawfully reduced whilst, at the same
time, votes of the 1st Respondent were illegally padded with
the sole purpose of procuring the victory of the 1st
Respondent in the 2012 December Presidential Elections.

25. When due account is taken of the statutory violations as well as of

the gross and widespread irregularities and malpractices, and the
necessary deductions effected from the votes wrongfully credited to
1st Respondent by the 2nd Respondent and the nullification as
required by law of the results declared at the polling stations where
these substantive infractions occurred, 1st Respondent did not
obtain the total of more than fifty percent (50%) of the valid
votes cast as required by Article 63 (3) of the Constitution in
order to become President, and accordingly ought not to
have been declared President.

26. Petitioners say that all of the irregularities and electoral malpractices
captured above were nothing but a deliberate, well-calculated
and executed ploy or a contrivance on the part of the 1st and
2nd Respondents with the ultimate object of unlawfully

256
 assisting the 1st Respondent to win the 2012 December
Presidential Elections.

27. The Petitioners say that, in consequences of these statutory

violations and infractions, as well as the irregularities and
malpractices, the results declared by 2nd Respondent in
favour of 1st Respondent were far in excess of the valid votes
cast in his favour, thereby subverting the sovereign will of
the electorate contrary to the preamble of the Constitution,
Article 1 (1) and Articles 42 and 63 (3) of the Constitution,
1992”

RESPONSE BY THE RESPONDENTS

All the Respondents herein filed their amended answers.

1ST RESPONDENT’S AMENDED ANSWER

The substance of the 1st Respondent’s answer is to the effect that the 2nd
Respondent declared the results of the 2012 Presidential Election Results at
a press conference which was widely carried on radio and television on 9th
December 2012 and same was thus published in a gazette notification in
the Declaration of President – Elect Instrument, 2012 (C. I. 80) on 11th
December, 2012.

257
The 1st Respondent further stated in the amended answer that the basis
of the declaration of the results by the 2nd Respondent was the
aggregate of total valid votes cast, which was 10, 995, 262.

Whilst the 1st Respondent generally denied the basis of the Petitioners
claims and contentions in all the grounds urged on this court in paragraphs
20-27 of the amended petition, the 1st Respondent specifically denied all
the grounds of the Petition and put the Petitioners to strict proof thereof.

In order to put matters in proper perspective, I deem it quite appropriate

to refer to in detail and in extenso the specific answers of the 1st
Respondent as contained in paragraphs 16 (a), (c), (i), (ii), (iii) (iv) (e) (f)
(g) (h) (i) (j) and also paragraphs 17 (d) (i) (i or j), 17B, 20, 21, 26, 27 (a)
and (d) as follows:

16. “The 1st Respondent denies paragraph 20 and ground 1 of the 2nd
Amended Petition generally and puts petitioners to strict proof of the
statements and allegation contained therein.

a. 1st Respondent does not admit paragraph 20 grounds 1 (a), and 1 (b)
of the petition and puts petitioners to strict proof of the averments
contained therein.

c. The first Respondent shall contend further, or in the alternative, as

follows:

258
i. Fingerprint verification is not the only means of
verification permissible under the law, in terms of Article
42 of the 1992 Constitution, failure or the inability (if at
all) of eligible voters to undergo fingerprint verification as
a result of the breakdown of equipment and/or for any
other reason not attributable to them cannot constitute
the basis for denying such voters of their constitutional
rights to vote, and have their votes counted.

ii. That any electoral laws and/or directives, the effect of which
would be to invalidate the votes of such persons, who had
properly presented themselves at polling stations to vote, and
had been duly identified as registered voters in the
biometric voters register, would be inconsistent with
Article 42 of the Constitution, and therefore,
unconstitutional;

iii. That 1st Petitioner had, or ought to have had polling and/or
counting agents at the various polling stations who were part of
the prescribed voter identification processes prior to voting.
The said polling and/or counting agents having participated in
that process and, having, after public and transparent
counting and/or collation, certified the results of the polling
stations and/or Constituencies, by signing without protest, the
polling returns, had thereby represented to the whole world
259
 that the declared results accurately reflected the outcome of
the election in the respective polling stations and/or
Constituencies.

iv. That the 1st Respondent shall contend therefore that

the allegations contained in the said paragraph 20
grounds 1 (a) and 1 (b), even if true (which the 1st
Respondent denies) did not affect the declared
results of the elections.

e. In further response to paragraph 20 ground 1 (d) of the

petition, the 1st Respondent says that all authentic “pink
sheets’ reflectgenuine results of lawfully supervised voting at
various pollingstations.

f. 1st Respondent states further that, assuming without

admitting, that some polling stations had the same code

numbers, that fact alone would not invalidate the

declared results of supervised elections in those polling

stations and the votes validly cast.

g. The 1st Respondent therefore denies paragraph 20 ground 1 (e)

of the 2nd Amended Petition, and, in further denial, repeats

Paragraphs 16 (e) and 16 (f) herein. The 1st Respondent shall

also contend that the allegations contained in the said

260
 paragraph 20 ground 1 (d), even if true (which the 1st

Respondent denies), did not affect the declared results of

the elections.

h. The 1st Respondent does not admit Paragraph 20 ground 1 (f)

of the 2nd amended petition and puts Petitioners to strict proof
of theallegations contained therein. The 1st Respondent
states that, anyhow, to the knowledge of the
Petitioners and their polling and/or counting agents the
results that were declared at the various polling
stations were the product of painstaking, public and
transparent sorting and counting and/or collation (and
sometimes re-counting) at the various polling stations
and collation centres with the full participation of 1st
Petitioner’s accredited polling and/or counting
agents, who did not protest at the declared results at
the time of their declaration.

i. In further response to paragraph 20 ground 1 (f) of the 2nd

amended petition, the 1st respondent says that assuming,

without admitting, that 2nd Respondents officers omitted to sign
declaration forms, such omission cannot operate to
invalidate the lawful exercise by eligible voters of their
fundamental rights under Article 42 to vote in
supervised elections in the affected areas. The 1st

261
 Respondent also repeats paragraph 16 (c) (iii) herein in
further response.

j. The 1st Respondent shall also contend that the allegations

contained in the said paragraph 20 ground 1 (f), even if true

(which the 1st Respondent denies), did not affect the results of
the elections.

17. (d) The 1st Respondent states further that, assuming, without

admitting, that in some instances, different polling stations had

the same serial numbers, that fact alone would not invalidate
the declared results of supervised elections in those polling
stations. The 1st Respondent shall also contend that the
allegations contained in the said paragraph 20 ground 2 1 (b),
even if true, did not affect the declared results of the elections.

i. Further or in the alternatives, the 1st Respondent states that

the results of the election in each polling station were declared
openly and publicly, and the votes credited to each candidate
arising from the declared results are matters of public
knowledge and verifiable. Therefore, granted that there
may have been conflict between the words and figures
stated on the “pink sheets”, that did not affect the
declared results of the elections.

262
j. The 1st Respondent states in further response to Paragraph 20
Ground (1) (f) that the results of the election were publicly
declared at the various polling stations and Constituencies and
are matters of public knowledge. To the knowledge of the
Petitioners and their polling and/or counting agents, the results
that were declared were the product of painstaking, public and
transparent sorting and counting and/or collation (and
sometimes recounting) at the various polling stations and
collation centres with the full participation of 1st Petitioner’s
accredited polling and/or counting agents, who did not protest
at the declared results at the time of their declaration.

17B. The 1st Respondent states in further response to the said

paragraph that the results declared in all polling stations
throughout the country (as reflected on all genuine “pink
sheets”), were the product of properly supervised elections in
which the Petitioners and the NPP, their political party, together
with their polling and/or counting agents participated; and
that in all cases, voting was done on the basis of a
biometric voters register, made available to all the
political parties prior to the elections.

20. The 1st Respondent denies paragraph 22 of the 2nd Amended

Petition and puts Petitioners to strict proof of the statements
contained therein. The 1st Respondent states in further

263
 response that the invitation by the Petitioners to annul
votes from 11,916 polling stations constitute an
attempt toundermine the fundamental rights of
Ghanaians under Article 42 of the 1992 Constitution,
and should be rejected by the Honourable Court as
completely lacking any basis in law and/or fact.

21. The 1st Respondent denies paragraph 23 of the 2nd amended

petition and puts petitioners to strict proof of the statements
contained therein. The 1st Respondent states in further
response to the said paragraph that the statements and
calculations contained therein completely lack any basis in law
and/or fact and should be wholly rejected by the Honourable
Court.

26. The 1st Respondent denies paragraph 27 of the Petition and

puts Petitioners to strict proof of the allegations and statements
contained therein. The 1st Respondent states in further
response that it is rather the Petitioners who, by the
present Petition, are seeking to subvert the
Constitution, undermines the integrity of 2nd
Respondent and the whole electoral system and the
sovereign will of the people of Ghana by demanding
from the Honourable Court an order annulling the

264
of the Public Elections (Registration of Voters) Regulations 2012, to exhibit the
Provisional Register for public inspection at the registration centres. The purpose
of the public display is for the registered voter to check whether his name is on the
register and to ascertain whether the particulars on his voter’s identification card
are the same as the particulars contained in the provisional register. In case of any
discrepancy a person may request for the exhibition officer to make correction in
the provisional register. In case a person is registered and his name does not appear
in the provisional register he may make a claim in the prescribed manner to have
his name entered on the provisional register. A person may also file a challenge to
a person whose name appear in the provisional register on the ground that the
person is not qualified to be registered as a voter.

These claims and objections are settled by a District Registration Review Officer.
The Commission certifies the register after the determination of claims and
objections.

This verification exercise naturally resulted in a variation between the number of

registered voters in the provisional register and the final Voters Register.

It seems to me that apart from the discrepancies in the voters register, I do not find
any substance in the complaints being made by the Petitioner against the voters
register. The Political parties and citizens had the shared responsibility to check the
provisional register for accuracy when it was exhibited, though the ultimate
responsibility for a clean and reliable register rests on the EC.

There was bound to be hiccups during the registration and compilations of the
Principal Register by the use of biometric verification devices for the first time in
Ghana namely unfriendly climatic conditions in which the machine was operated
causing it freeze; and unfamiliarity with the device by the users.

130
Despite these few setbacks, I find that the EC had conducted its affairs
professionally and transparently to produce a clean, credible and reliable voters
register. Information regarding the voters register is available on the EC’s Website.
At the trial it was established that the final register was given to all political parties
in the form a CD-ROM and hard copies as well.

From the foregoing I hold that the petitioner’s complaint that the compilation of
the voters register had an adverse impact on the 2012 December Elections cannot
be sustained.

Violations, Omissions, Malpractices and Irregularities in the Conduct of the

Presidential Elections held on the 7 and 8 December, 2012.

The petitioners in the written address made what I term the Petitioner plea that:

“…[W]hat all citizens expect form the highest court of the land is the
interpretation and enforcement of the Constitution and the law, and
their application to the evidence adduced in this trial without fear or
favour, as the judicial oath of the learned justices of this Honourable
Court requires of them.”

And this is what I set out to do.

CONSTITUTIONAL AND STATUTORY VIOLATIONS

Article 49 of the Constitution makes provision for the conduct of voting. The same
Constitution under Article 51 empowers:

“The Electoral Commission, by constitutional instrument, make regulations,

for the effective performance of its functions, under the Constitution or any

131
 other law, and in particular, for the registration of voters, the conduct of
public elections and referenda, including provisions for voting by proxy”

One of such regulations is the Public Elections Regulations, 2012, (C.I. 75).

The Petitioners are seeking annulment of results in certain polling stations for
alleged violation of the Article 49 and Regulation 30 of C.I.75. These alleged
violations came about from the conduct of the election, and the Petitioners
identified them as voting without biometric verification, over voting andnon-
signature of declaration forms.

In the evidence put before the Court the Petitioners made no allegation of
misconduct against voters and the 1st and 3rd Respondents. The allegation of
collusion by the EC with STL was dropped. Allegation of vote padding was
dropped. The violation and irregularities complained about were as a result of
lapses on the part of presiding officers and polling/counting agents.

The election at the polling stations was conducted by presiding officers and polling
assistance on behalf of the EC, and supervised on behalf of the candidates by their
appointed polling and counting agents. It is therefore pertinent to set out the role of
the presiding officer, the polling agents and counting agents on Election Day.

Role of Presiding officers and Polling/Counting Agents

The role of Presiding officers and Polling/Counting Agents are constitutionally and
statutorily regulated. Article 49 of the Constitution clearly articulates the
constitutional roles of polling agents alongside presiding officers at public
elections.

“49. (1) at any public election or referendum, voting shall be

by secret ballot.
132
(2) Immediately after the close of the poll, the presiding officer shall, in the
presence of such of the candidates or their representatives and their polling agents
as are present, proceed to count, at that polling station, the ballot papers of that
station and record the votes cast in favour of each candidate or question.
(3) The presiding officer, the candidates or their representatives and,inthe case
of a referendum, the parties contesting or their agents and the polling agents if any,
shall then sign a declaration stating -
(a) the polling station; and
(b) the number of votes cast in favour of each candidate or question: and the
presiding officer shall, there and then, announce the result of the voting at the
polling station before communicating them to the returning officer.”
Additional Functions of Presiding Officer
Regulation 17 of C.I. 75 provides for the appointment and role of presiding officer
and polling assistants. Their appointment is made by the EC. The role of the
presiding officer includes:

(a) Setting up the polling station;

(b) Taking proper custody of ballot boxes, ballot papers, biometric verification
equipment and other materials required for the poll; filling the relevant
forms relating to the conduct of the poll
(c) Supervising the work of the polling assistants;
(d) Attending to voters without identity cards
(e) Attending to proxy voters;
(f) maintaining order at the polling station;
(g) undertaking thorough counting of the votes;
(h) announcing the results of election at the polling station; and
(i) conveying ballot boxes and other materials to the returning officer after the
poll.

I notice that no mention is made of the signing of a declaration form and giving a
copy of the pink sheet to the candidate or his or her agents. This omission is not
fatal as they are covered by Article 49 (3) and Regulation 36 3 (b). I however
recommend they are included.

133
Role of Polling Agent

Regulation 19 of C.I. 75 provides for the appointment and role of polling agents.
The role description shows that Polling agents are not mere or “exalted observers”
as claimed by the Petitioners. The section provides:

“19. (1) A candidate for parliamentary election, may appoint one polling
agent to attend at each polling station in the constituency for which the
candidate is seeking election.

(2) A candidate for presidential election may appoint one polling

agent in every polling station nationwide.

(3)An appointment under sub-regulations (1) and (2) is for the

purpose of detecting impersonation and multiple voting and certifying
that the poll was conducted in accordance with the laws and
regulations governing the conduct of elections.”
(4) A presiding officer shall give a polling agent the necessary access
to enable the polling agent to observe election proceeding at a polling
station.”

Role of a Counting Agent

Regulations 35 make provisions for the appointment of counting agents and

counting of votes.

“35 (1) A candidate for parliamentary or presidential elections may

appoint a counting agent to attend the counting of votes at each polling
station in the constituency which the candidate is seeking election.
(2) In the case of a candidate for presidential elections the candidate may
appoint a counting agent in every station nationwide.”

The counting agent is also given specific roles to play at the counting stage of the
elections. The regulations allow a polling agent to act as a counting agent as well.
Regulations 36 provides as follows:

134
 (1) The presiding officer shall immediately after the close of the poll, in the
presence of the candidates or their representatives and counting agents:
(a) open each box and take out all the ballot papers in the box ;
(b) sort out, the ballot papers into valid ballot papers and rejected ballot
papers in accordance with regulations 37;
(c) proceed to count the ballot papers at the polling station
(d) record the total number of votes cast in favour of each candidate
(e) record the total number of rejected ballots
(2) The presiding officer, the candidates, or their representatives and the
counting agents shall then sign a declaration stating

(a) the name of the polling station;

(b) the total number of persons entitled to vote at that polling station;
(c) the number of votes cast in favour of each candidate; and
(d) the total number of rejected ballots.

(3) The presiding officer shall

(a) then announce the results of the voting at that polling station
before communicating the results to the returning officer; and
(b) give each candidate or the representative of the candidate or the
counting agents a copy of the declaration of the results.”

It is clear from these provisions that a presiding officer, a polling agent and a
counting agent have important roles to play from the beginning of polling to the
declaration of results; and that they complement each other in conducting the polls.
Looking on the face of the pink sheets it is not farfetched to say that both 1st
Petitioner and 1st Respondent appointed a polling agent and a counting agent to the
polling stations, that explains why invariable two agents signed the pink sheets as
Regulation 36(2) suprapermits ‘candidates, or their representatives and the
counting agents shall to sign’. Regulation 35 (6) permits a polling agent appointed
by a candidate to act as a counting agent. It is in the interest of a candidate to
appoint at least one agent to be at each of the 26,002 polling stations due to the
roles they are mandated by the constitution and regulations to perform.

135
Swearing of Oath

The duties of a presiding officer, polling agents and counting agents are weighty as
it is by their performance that an election can be judged fair, impartial, and non-
discriminatory and the results accepted by all as credible. Since their role requires
honesty, integrity and impartiality they are all (including polling assistance) at the
various stages of their appointment) required “to swear to an oath that they shall
abide by the laws and regulations governing the conduct of elections”.
The presiding officer and polling assistants who work under him, in taking their
oaths swear further that ‘’they will faithfully carry out duties in a fair and impartial
way”. [Regulation 17(4) (a) and (b)]
An additional oath taken by a counting agent is that he:

(c) “will sign the declaration of results following the count of the
ballot, or state in writing to the presiding officer the reason for
failing to do so.” [Regulation 35(4)]

Sanctions for breach of oath

In the case of presiding officer and polling assistance, Regulation 17(5) provides
that:
“A person appointed a presiding officer or polling assistant who
contravenes the laws and regulations governing the conduct of
elections commit an offence and is liable to sanctions applicable
under the electoral laws of Ghana.”

For a counting agent, he takes the oath “upon penalty of perjury’. [Regulation
35(4)] In the case of a polling agent no sanction is stated but under common law an
oath is taken upon penalty of perjury.

Is the role of the polling /counting agent a mere observing role as put out by the
Petitioners?

136
It is clear from the constitutional and statutory regulations that the polling agent
forms an integral part of the conduct of the polls on Election Day. He has before
the polls sworn to the same oath that the presiding officer and polling assistance
have sworn to abide by the laws and regulations governing the conduct of the
election.
Although he does not directly perform the tasks assigned to the polling assistance,
for instance matching ID cards of voters or distributing ballot papers, he is
enjoined by his oath see to it that the rules for the conduct of elections are
followed. The presiding officer is also to give him space to do that. Accordingly
before the polls begin at a polling station, a polling agent is required to observe the
presiding officer setting out tables and materials for the election and most
importantly fill Sections A and B of the pink sheet.
When polling starts polling agents as watchdogs are to help detect impersonation,
multiple voting, tampering with the contents of a ballot box and polling staff that
do not follow the laid down procedures, or misconduct themselves.

A polling agent is expected to call the attention of the Presiding Officer to anything
he considers to be irregular, and if necessary, fill an irregularity form or give a
written account of the irregularity to the Presiding Officer or a higher election
officer like the returning officer at the collation centre.

Under Article 49.3 polling agents are required to certify the results of their polling
stations, consequently polling agents are expected to pay close attention to rejected
ballots, closely observe the counting of votes; and make sure that the total number
of votes obtained by each candidate has been properly recorded. A polling agent
may ask for a recount if he genuinely thinks that the votes have not been counted
correctly. Recount is done only once at the polling station. If still unsatisfied the all

137
agents must accompany the ballot box to the constituency centre for the Returning
Officer to count the ballots.

A counting agent is required to sign the Declaration of Results form. Poling agents
should obtain copies of the signed copy of the results for their candidates. If a
polling agents refuse to sign the results he must give reasons to the Presiding
Officer or a superior election official.

To conclude the discussion on the role of presiding officers and polling/counting

agents I wish to observe that these presiding officers and polling/counting agents
have to undergo intensive and proper training to be able to carry out this very
sensitive tasks assigned them under the Constitution and C.I. 75. These persons
have to show professionalism, understanding of the electoral laws which may seem
simple but complex to carry out. Even though the EC offers training for the agents
of candidates, I think it is the responsibility of Political parties to ensure that the
agents they appoint have been thoroughly trained and acquainted with what they
have to look for. Most of the irregularities complained of in this petition are not
trivial as it is the inaction of both the polling agents and presiding officers that has
brought us here. Had the polling/counting agents been more attentive to what the
presiding officers were required to fill on the forms and the sources from which the
information is to be extracted e.g. the voters register, ballot booklets and the
biometric verificationequipment the errors on the pink sheet might have been
minimal. Political parties must invest in the training of their polling agents and not
leave it all to the Electoral Commission which appears to organize crash training
programs due to limited time.

I will now proceed to deal with the allegation of no signatures of pink sheets by
presiding officers to be followed by voting without biometric violation.

138
ABSENCE OF SIGNATURES BY PRESIDING OFFICERS

This category of irregularity is outside the voter’s control, and is caused solely by
the error or omission on thepart of the presiding officer. Article 49 (3) supra, and
Regulation 36 (2) suprarequires the presiding officer, the candidate or their
representatives to sign a declaration stating that the results are a true and accurate
account of the poll at that polling station, the name of the polling station, the total
number of votes cast in favour of each candidate and the total number of rejected
ballots.

There was evidence that some forms were unsigned by the presiding officers and
the party agents. The Petitioners are requesting that the votes in these polling
stations be annulled as the non-signing of the sheets by presiding officers is an
infringement of Article 49 (3).

Counsel for Petitioners submits that:

“It should respectfully be noted that article 49 (3) does not place any
premium on the presence of the signature of the agent on the declaration
forms unlike that of the presiding officer. That is why it stipulates that “the
polling agents (if any)” shall then sign the declaration form after the signing
by the presiding officer.”

I find this argument misplaced as the words the ‘polling agents if any’ is taken out
of context. To single out the words ‘the polling agents if any’ without reference to
the remaining words in section 49(3) of article 49 would be a totally wrong
approach to the interpretation of that subsection. For it is important in interpreting
a provision of a statute to take account of all the words used since the legislature is
presumed not to have used the words unnecessarily. In Halsbury’s Laws of
England, (3rd ed.) at pages 389 to 390, paragraph 583, states:

139
 “It may be presumed that words are not used in a statue without a meaning
and are not tautologies or superfluous, and so effect must be given, to all the
words used, for the legislature is deemed not to waste its words or say
anything in vain.”

It is also trite law that the overriding principle of statutory interpretation is that the
“words of an Act are to be read in their entire context and in their grammatical
and ordinary sense harmoniously with the scheme of the Act.” E. A. Driedger,
Construction of Statutes (2 ed. 1983) at page 87.

Article 49(3) which states:

“The presiding officer, the candidates or their representatives and, in the

case of a referendum, the parties contesting or their agents and the polling
agents if any, shall then sign a declaration stating…”[ Emphasis added]

In my opinion by the use of the commas in the sentence, the underlined words
relate to referenda and the phrase ‘if any’ refers to the whole of the underlined
words. This makes sense as voting in a referendum does not involve candidates
vying for public office; but is usually to decide on constitutional issue(s) as was
held in 1977 or 1978 on the issue of UNIGOV oron 28 April, 1992 for the adoption
of the 1992 Constitution; or as the citizens of Ghana may probably be required do
in the future for the

140
 constitutional and statutory violations, malpractices and irregularities
in the nature of: (i) over-voting; (ii) same serial numbers on
pink sheets with different results: and (ii) polling stations
with same polling stations codes and different results
occurred, and can be found on the same pink sheets. The
combined effect of these infractions vitiated 3,167 votes. Attached
herewith and marked as Exhibits MB-X, MB-X-1 to MB-X-7 are
photocopies of pink sheets of the polling stations where these
infractions occurred.

64. Th11.538 -2.518-7(4[(64.).8c0D71CDd [(X)-3(,)-7( )1(MB)]TJ 0 T o)- acent4[n

287
 d. That 1st Respondent had conspired with 2nd Respondent to steal
votes for 1st respondent.

Based upon the above depositions, the 1st and 3rd Respondents prayed the
court that the Petition is wholly unmeritorious and lacks in substance.

2ND RESPONDENTS AFFIDAVIT PURSUANT TO THE DIRECTION OF

THE COURT DATED 2ND APRIL, 2013 SWORN TO BY AMADU
SULLEY DEPUTY CHAIRMAN OF THE COMMISSION

It should be noted that, in this petition the position of the 2nd Respondent,
as the constitutionally mandated body in charge of organizing and or
conducting elections in Ghana is paramount.
I will therefore devote some time to an analysis of the case as is contained
in the detailed affidavit sworn to by the 2nd Respondents.

In this regard therefore, I think it is pertinent to refer in extenso to some

relevant portions of the affidavit sworn to by Amadu Sulley and referred to
supra.

The relevant portions of the said affidavit are paragraphs 3, 6, 13, 14 and
15 of 2nd Respondents Affidavit sworn to by Amadu Sulley on 16-4-2013.

3. “The manner in which the 2012 Elections were conducted, as

300
 described in paragraph 14 of the 2nd amended answer filed on behalf
of the 2nd respondent on April 3, 2013, and the participation of
representatives of all the political parties in the procedures followed
in the Constituency Collation Centres and in the 2nd Respondent’s
Headquarters (Strong Room), makes it impossible to falsify the votes
cast and to conceal such falsification. By the same token, it is
impossible to make a false allegation of falsification and to sustain
such an allegation.

6. In the petition, the Petitioners are now seeking to overturn the

results declared by the 2nd Respondent on the grounds of

irregularities and malpractices in six “main categories”. Each of those
categories have been effectively refuted by the 2nd Respondent in its
answer filed on 07/01/2013; its amended answer filed on
27/02/2013; its Analysis of the Further and Better Particulars
provided by the petitioners application, the response filed on
12/02/2013 by the 2nd respondent to the Interrogatories submitted
by the Petitioners and the Supplementary Affidavit filed on the 2nd
Respondent on 01/04/2013 regarding the alleged 28 unknown polling
stations.

13. Paragraph 34 of the 2nd Petitioners affidavit is false. Polling Stations

are identified by their names and their unique Polling Station Codes.
The serial number on a Polling Sheet is NOT a security feature.

301
 Further, this matter has been fully explained in paragraph 18 (a) of
the 2nd Respondent’s 2nd amended answer.

14. Paragraphs 36 to 68 contain inconsistencies and are denied. The 2nd

Respondent says that the Petitioners are fastening onto errors,
committed in the completion of pink sheets, by Presiding
Officers that do not benefit any particular candidate or affect
the number of valid votes cast at polling stations.

15. The reliefs sought by the Petitioners are without merit and the
Honourable Court is requested to dismiss their petition.”

From the above depositions of the 2nd Respondent, which should be jointly
read with the depositions contained in the affidavit of Johnson Asiedu-
Nketiah, sworn to on behalf of the 1st and 3rd Respondents, already
referred to supra, it should be clear that all the Respondents vehemently
deny in substance the claims of the Petitioners.

There are some preliminary observations and comments that I would wish
to make in the case before I address the points of substance posited in the
issues.

302
PRELIMINARY COMMENTS AND OBSERVATIONS
It has already been noted that, this Presidential Election Petition is the first
of its kind in the legal annals of this country. Several persons have
therefore commented on the procedure that was adopted by the Court.
Most of the comments compared the swiftness of the Kenyan Supreme
Court in dealing with a similar election petition challenge in that country as
opposed to the near snail pace approach adopted by us in the Ghana
Supreme Court.

This therefore calls for discussions of some constitutional and statutory

provisions germane to the Ghana situation.

CONSTITUTIONAL PROVISIONS ON CHALLENGE OF VALIDITY OF

PRESIDENTIAL ELECTION

Article 64 (1) (2) and (3) of the Constitution, 1992 provides:-

64. (1) “The validity of the election of the President may be challenged
only by a citizen of Ghana who may present a petition for
the purpose to the Supreme Court w ithin tw enty-one days
after the declaration of the result of the election in respect of
which the petition is presented.
(2) A declaration by the Supreme Court that the election of
President is not valid shall be without prejudice to anything
done by the President before the declaration.

303
 (3) The Rules of Court Committee shall, by constitutional
instrument, make rues of court for the practice and procedure
for petitions to the Supreme Court challenging the election of a
President.”

From the above provisions, it is certain and clear that, in the first place,
any challenge to the validity of the election of a President can only be filed
after the declaration of the results of same by the Electoral Commission.
This means that, the Chairman of the Electoral Commission, who is the
returning officer for the Presidential election must have declared the results
by a President Elect Instrument pursuant to article 64 (9) of the
Constitution 1992.
Secondly, any person desirous of challenging the declaration of a person as
a President by the Electoral Commission has to do so within 21 days of the
declaration of the said result.

Thirdly, it should be noted that, by the provisions in article 64 (2) of the

Constitution 1992, a clear intention has been indicated that the pendency
of a challenge to the validity of the election of a person as a President
cannot stop the President from acting in that capacity as a President. That
is the purposive way in which the said provisions should be interpreted
such that there will not be any vacuum in the running of affairs of the
state.

304
That explains the rationale why the constitutional provisions in article 64,
clause 2 does not invalidate any action taken by the President before the
declaration by the Supreme Court on the validity or otherwise of the
election of the President.

Finally, article 64 (3) mandates the Rules of Court committee to make

constitutional instruments to regulate the conduct, practice and procedure
of petitions to the Supreme Court seeking to challenge the election of a
President.
It was in pursuant of the said provisions that the Supreme Court
(Amendment) Rules, 2012 C. I. 74 was promulgated.

In order to illustrate the point made supra, it is pertinent to refer to the

preamble to C. I. 74 which reads thus:

“I n ex ercise of the pow ers conferred on the Rules of Court

Com m ittee by clause (4) of article 33, clause (3) of article
64 and clause (2) of article 157 of the Constitution, these
Rules are m ade this 9 th day of January, 2012.”.

As the title of the C.I. 74 indicates, it is an amendment of the Supreme

Court Rules, 1996 C.I. 16 as amended by the Supreme Court (Amendment)
Rules, 1999 (C. I. 24).

305
C.I.74

This instrument reiterates the constitutional provisions in article 64 (1) and

(2) of the Constitution 1992 already referred to supra.

RULE 69A

This rules states that a respondent has 10 days within which to raise a
preliminary objection or file an answer to the petition. Thus, if the
petitioner has 21 days to file a petition after the declaration of the result,
then the respondents have 10 days after service to either file an answer or
raise a preliminary objection.
Considering the fact that the petition may not be served on the same date
that is filed, then there is the possibility that valuable time may again be
lost in service which may even be by substitution as provided for under
Rules 68 B, sub-rules 4 and 5 of C. I. 74.

As a country, if we are desirous of proceeding in the express highway (fast

lane) approach to the determination of such petitions by the courts, then it
is my opinion that appropriate legislation must be passed to reflect that
phenomenon. The blame must not be put at the door posts of the courts
for the snail pace approach, but with the enabling constitutional provision
and rules of procedure. These provisions and rules certainly need to be
amended to make room for expedition, without sacrificing efficiency. This is
because, there is an adage in which I believe which states that, “Justice

306
hurried, is justice buried”. It must also be noted that, the Constitution
which was promulgated and enacted and came into force on 7th January
1993 must be considered as a constitutive act of the people of Ghana
which affirmed and endorsed priceless principles and precepts which must
be honoured and respected.

ELECTRONIC SERVICE – RULE 69 B

Even though the rules provide for electronic service, it is a pity that in this
modern I.C.T world, we have not been able to implement this provision. I
believe the time is ripe for the full and effective utilization of the rules of
I.C.T not only in our mode of service of documents, but more importantly
in our scheme of work and also adduction of evidence before the court.

It is in respect of the above that I regret the inability of the Court to heed
the many applications by the Petitioners to adopt I.C.T methods of
adduction of evidence which unfortunately were not granted. It is my wish
and hope that in future, steps would be taken to ensure a smooth blend of
I.C.T with our procedural rules, just as the live telecast of proceedings was
handled progressively to allow all Ghanaians and the world at large to
watch these proceedings.

On the whole, it should be noted that C. I. 74 was passed with expeditious

and fast disposal of petitions commenced under it as its philosophical
underpinnings. This explains why provisions were made for the court to

307
give its decision not later than 15 days from the close of the hearing of the
petition.

Again it is instructive to note that, the day to day sitting including

Saturdays, Sundays and public holidays and no review of final decision
including the opening of the Court registry on all days including Saturdays
and Sundays are all designed to ensure expedition. Unfortunately, some of
the above provisions i.e. sitting on public holidays and no review have been
shot down by the Supreme Court at the instance of a plaintiff.

I have had to deal at length with the above constitutional provisions as well
as Rules of Court applicable in dealing with presidential election petitions to
drum home the fact that there is the need to make for further radical
reforms in our laws if we are to achieve what has been done elsewhere i.e.
the Kenyan experience.

PRACTICE DIRECTION

In this respect, I think the Court acted with the necessary dispatch when it
gave the practice directions on the 2nd April 2013. In retrospect, I think the
court should have been more radical in content by not allowing
unnecessary cross-examination of the parties who gave depositions in their
affidavits. Even though I concede that these cross-examinations were very
useful and gave us a lot of insight into the case before the Court, am of the

308
opinion that in future, learned counsel should be limited by allotting time
for the cross-examination and arguments on motions and objections. This
will definitely eliminate over elaboration, repetitions and excessive playing
to the gallery especially the television cameras.

INTERLOCUTORY RULINGS

During the course of hearing this petition, several interlocutory rulings

were delivered which on hindsight I thought should have been otherwise
decided in order for this Court to do substantial justice and move the
petition faster. I will refer only to a few.

1. THE RULING ON MOTION TO PRODUCE DOCUMENTS FOR

INSPECTION AND DISCOVERIES

This application was filed by the Petitioners seeking an order from the
Court directed at the 2nd Respondents to produce for their inspection and
copy being made thereof of the following:

i. The results collation forms for all the 275 collation centres for the
Presidential elections.

ii. The declaration forms that is the pink sheets for all 26,002 polling
stations.

309
verification before those who are not listed as “face only” went through finger print
verification. The system made special provision for those without fingers and
fingerprints to be verified by face only and such data is captured on the BVD
machine as well as on their voters ID card. From the foregoing it is my contention
that sub-regulation (2) of Regulation 30 which provides that: “(2) [T]he voter shall
go through a biometric verification process” is therefore misleading as a strict
implementation of it would disenfranchise all persons who cannot go through
fingerprint identification.

In any event, the compilation of a new voters register using biometric technology,
plus the mandatory use of biometric verification devices on polling day, as
provided by both C. I. 72 and C. I. 75 respectively, were the necessary mechanisms
lawfully put in place to enhance the integrity of the ballot in Ghana. In my view the
law requiring that every voter shall go through a process of verification is
legitimate and is consistent with international norms. Reference is made to election
jurisprudence, where the decisive question that arose for consideration is:

When can it be legitimately said that a legislative measure designed to enable

people to vote in fact results in a denial of that right?

In Ted Opitz supra the Supreme Court of Canada at par.38 has this to say:

“While enfranchisement is one of the cornerstones of the Act, it is not

freestanding. Protecting the integrity of the democratic process is also a
central purpose of the Act. The same procedures that enable entitled voters
to cast their ballots also serve the purpose of preventing those not entitled
from casting ballots. These safeguards address the potential for fraud,
corruption and illegal practices, and the public’s perception of the integrity
of the electoral process. Fair and consistent observance of the statutory
safeguards serves to enhance the public’s faith and confidence in fair
elections and in the government itself, both of which are essential to an

152
 effective democracy; Longley v. Canada (Attorney General), 2007 ONCA
852,88 O.R. at para, 64 .”
Mr Addison also referred to the South African case of New National Party v
Government of the Republic of South Africa and Others (CCT9/99) [1999]
ZACC 5; 1999 (3) SA 191; 1999 (5) BCLR 489 (13 April 1999).The impugned
provisions prescribed that, pursuant to the Electoral Act, No. 73 of 1998, South
African citizens otherwise entitled to vote could only participate in the 1999
elections if they possessed and produced one of two identification documents when
voting: either a bar-coded identification card or a temporary identification card
(TIC).

The Constitutional Court, per Yacoob J, held:

“But the mere existence of the right to vote without proper

arrangements for its effective exercise does nothing for a democracy;
it is both empty and useless. The Constitution takes an important step
in the recognition of the importance of the right to exercise the vote
by providing that all South African citizens have the right to free, fair
and regular elections. It is to be noted that all South African citizens
irrespective of their age have a right to these elections. The right to
vote is of course indispensable to, and empty without, the right to free
and fair elections; the latter gives content and meaning to the former.
The right to free and fair elections underlines the importance of the
exercise of the right to vote and the requirement that every election
should be fair has implications for the way in which the right to vote
can be given more substantive content and legitimately exercised.
Two of these implications are material for this case: each citizen
entitled to do so must not vote more than once in any election; any
person not entitled to vote must not be permitted to do so. The extent
to which these deviations occur will have an impact on the fairness of
the election. This means that the regulation of the exercise of the right
to vote is necessary so that these deviations can be eliminated or
restricted in order to ensure the proper implementation of the right to
vote.”

153
investigation as the running mate of the 1st petitioner and also as a
person with proficiency in statistics.

The investigation involved examination of the statement of poll and

Declaration of the Result of the Office of president (“pink sheets”) of
the polling stations.

According to him, the polling stations results as captured on the

“pink sheets” constitute the “primary evidence” upon which the
election results were declared. The pink sheets were given to
representatives of the 1st petitioner as required by Regulation 36(3)
(b) of C. I. 75.

It is as a result of the investigation that the six main categories of

constitutional/statutory violations, commission irregularities and
malpractices were uncovered.

It is their case that these irregularities create opportunities for

electoral malpractices.

The 2nd

194
When the 2nd Respondent’s, rightly in my view sought to tender the
collation sheets for those constituencies for the Court to be satisfied that
not more than the required number of pink sheet results were taken into
account in the collation for those constituencies, the objection was again
upheld. This denied the 2nd respondents the opportunity to explain that not
more than one pink sheet was used to collate the results.

I am however of the opinion that, those objections were upheld because

the court had previously denied the Petitioners the same opportunity when
they first sought to introduce them into the case. For purposes of
consistency, the court persisted in its previous ruling by denying the
introduction of the collation sheets.

For now, doubts have been created in our minds as to whether the
Ex hibit Y, type of situation actually found their way into the collation of
the results and therefore the declaration made by the 2nd Respondent in
favour of the 1st Respondent could have been based on exaggerated and
duplicated figures. But luckily these doubts have now been erased in our
minds by exhibits X, Y and E.C 11 series.

Similarly, when the 2nd Respondent’s also sought to introduce pink sheets
from Ashanti Region during the cross-examination of the 2nd Petitioner, Dr.
Bawumia an objection was raised and upheld by the Court which denied
the opportunity to the Respondent’s to tender pink sheets from the
stronghold of the petitioners. If indeed there were similar malpractices and

313
or irregularities and constitutional violations in other parts of the country,
then equity would have demanded that uniform rules of application be
made to apply to all such infractions of the law.

In this instance, if the 2nd Respondent had been directed to produce at

least pink sheets that are being contested for by the petitioners, those pink
sheets would have been in evidence or at least before the court, and no
legitimate objection would have been raised. After all, “What is good for
the goose is also good for the gander”. However, because of prior rulings
in the case, the court has been left with no opportunity to examine the
bonafides of the other claims.

If the above documents, had been tendered, they could have helped the
Court to determine whether the December 7th and 8th Presidential elections
were completely flawed and bereft of any legitimacy or not.

I believe as a people and country, we will take a cue from these procedural
lapses and make amends in future cases if they should arise.

2. AMENDMENT OF PETITION

I am also of the view that it is not for nothing that the Constitution 1992
and C.I. 74 provide that the petition challenging the validity of an election
should be filed within 21 days after the declaration of the results by the
Electoral Commission.

314
If therefore, a Petitioner has not been able to comprehensively assemble
all the allegations which he intends to use for the petition within the 21
days at his disposal, such a Petitioner should not be permitted to amend
his case as and when he discovers new evidence after the 21 days has
lapsed. This definitely contributed to delay in the petition hearing.

JOINDER OF THE NATIONAL DEMOCRATIC CONGRESS (NDC)

Even though the Court has derived much assistance from Counsel for the
NDC Mr. Tsatsu Tsikata for his incisive cross-examination, I am of the
considered opinion having reflected on the provisions of the Constitution
1992, the Supreme Court Rules 1996, C.I. 16 and C. I. 74, already referred
to, that there is really the need for such petitions to be expeditiously dealt
with. I am therefore of the considered view that in future, political parties
as entities should be left out of such petitions as happened when this court
granted the application for joinder of the National Democratic Congress.

The attempt by the Petitioners in including their Party Chairman in the

petition as a 3rd Petitioner I dare say was one of the factors that motivated
the 3rd Respondents to seek to join.

Once the beneficiary of the declared election result is one of the

Respondents, to wit the 1st Respondent and as at now belongs to a
recognised political party, i.e. NDC, what has to be done is for the party to
arrange the legal representation for the President such that the fortunes of
the party are not compromised.

315
I am making these observations because I am of the view that valuable
time was equally lost when the application for the joinder was made.
Similarly, the many spurious applications made by persons claiming to be
members of the NDC to join the suit to protect their votes also engaged
valuable time of the Court. But for the pro-active ruling delivered by this
court to deal with all such applications, the systematic and strategic
manner in which the applications were being filed and fixed for hearing
could have further derailed the hearing of this petition.

There is therefore the need for appropriate amendments to be made to the

rules of Court to explicitly deal with and prevent joinder of such corporate
entities like political parties and other individuals who do not have a direct
beneficial interest in the outcome of the election.

BURDEN OF PROOF

There is no doubt that the petitioners are very much aware of the standard
of proof that lies upon them as petitioners to discharge the evidential
burden to enable them convince the court as is required by law, reference
sections 10, 11(1) and 12 (1) of the Evidence Act, 1975 NRCD 323.

This sections stipulate that the burden of persuasion which the obligation
of a party requires to establish a requisite degree of belief concerning facts
in the mind of the court to prevent a ruling being made against him on an
issue is by proof by a preponderance of probabilities.

316
In giving teeth to the above provisions of the Evidence Decree, my
respected brother, Ansah JSC in the case of Takoradi Flour M ills v
Sam ir Faris [2005-2006] SCGLR 882, at 900 stated authoritatively
concerning this burden of proof in civil matters as follows:-

“It is sufficient to say that this being a civil suit, the rules of evidence
requires that the plaintiff produces sufficient evidence to make out
his claim on a preponderance of probabilities, as defined in section
12 (2) of the Evidence Decree, 1975 (NRCD 323). Our understanding
of the rules in the Evidence Decree, 1975 on the burden of proof is
that in assessing the balance of probabilities, all the evidence, be it
that of the plaintiff, or the defendant, must be considered and the
party in w hose favour the balance tilts is the person w hose
case is the m ore probable of the rival versions and is
deserving of a favourable verdict.”

Throughout the trial of this case, this duty and standard of the burden of
proof which the law has put on a plaintiff, in this case the petitioners, has
not been lost on them.

All the respondents agree with the proposition of the law on the burden
and standard of proof that lies on the petitioners to sustain their petition.

See for example the written address of learned counsel for the 1st
Respondent, Tony Lithur when he stated thus:

317
“The law is settled that the party who bears the burden of proof must
produce the required evidence of the facts in issue that has the quality of
credibility for his claim to succeed. (See sections 10 (1) and (2) and 11 (1)
and (4) of the Evidence Act, 1975 (NRCD 323). Thus, in Ackah v P ergah
Transport Lim ited & Others [2010] SCGLR 728, Her Ladyship, Mrs.
Justice Sophia Adinyira, JSC succinctly summed up the law, 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…I t is trite law that m atters that are capable of proof m ust
be proved by producing sufficient evidence so that, on all the
evidence, a reasonable m ind could conclude that the
ex istence of a fact is m ore reasonable than it’s non-
ex istence. This is the requirement of the law on evidence under
section 10 (1) and (2) and 11 (1) and (4) of the Evidence Act, 1975
(NRCD 323)”

Learned counsel for the 1st Respondent, continued his address on this issue
in the following terms:-

“Election petitions have their own dynamics in relation of proof. In the

Nigeria election case of Abubakar v Yar’Adua [2009] ALL FW LR (Pt.
457) 1 SC, the Supreme Court of Nigeria held that the burden is on the
P etitioner to prove, not only non-com pliance w ith the electoral

318
law , but also that the non-com pliance affected the results of the
election.

In the same vein, in the Canadian case of Opitz v W rzesnew skyi 2012
SCC 55-2012-10-256, the Canadian Supreme Court tersely held, by
majority opinion, that:

“An applicant w ho seeks to annul an election bears the legal

burden of proof throughout… ”

Also, in Col. Dr. Kizza Besigye v M useveni Yow eri Kaguta &
Electoral Com m ission, Election Petition No. 1 of 2001 , the majority
of the Ugandan Supreme Court Justices held as follows:

“…the burden of proof in election petitions as in other civil cases is

settled. I t lies on the P etitioner to prove his case to the
satisfaction of the Court. The only controversy surrounds the
standard of proof required to satisfy the Court.”

Continuing his submissions in the written address, learned counsel stated

as follows:

“It should be noted that, if a legal rule requires a fact to be proved,

the court must decide whether or not it happened. In the recent case
of Re B [2008] UKHL 3, Lord Hoffman aptly stated the position,
using mathematical analogy thus:

“If a legal rule requires a fact to be proved (a fact in issue), a judge

or jury must decide whether or not it happened. There is no room for
a finding that it might have happened. The law operates a binary
319
 system in which the only values are 0 and 1. The fact either
happened or it did not. I f the tribunal is left in doubt, the
doubt is resolved by a rule that one party or the other carried
the burden of proof. I f the party w ho bears the burden of
proof fails to discharge it, a value 0 is returned and the fact
is treated as not having happened. I f he does discharge it, a
value of 1 is returned and the fact is treated as having
happened.”

The above statement is therefore quite authoritative and conclusive of the

issue of burden of proof.

Learned Counsel for the 3rd Respondent, Tsatsu Tsikata, in his written
address on the subject, made similar remarks as follows:-

“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 votes, which would
deprive these citizens of their constitutional right to vote, but also
that they clearly establish the factual basis on w hich 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, for this reason
alone their petition must fail. “

320
Learned counsel for the 3rd respondent then drew references to a number
of things why in his opinion the Petitioners have failed to discharge the
burden that lay upon them in proof of their petition.

Notable among these is the changing face of the number of pink sheets
they rely upon which according to counsel has been disproved by the
KP M G report .

Another instance is the fact that, the pink sheets upon which the
petitioners relied entirely for the proof of their case is itself dependent
upon several other primary sources of evidence like polling station
voters register , the polling station biom etric m achine the record
of ballot papers issued to the polling station , just to mention a few.

The input on the burden and standard of proof by learned counsel for the
2nd Respondent, Mr. James Quashie-Idun was not different in content from
the 1st and 3rd respondents. In essence, whilst acknowledging the fact that
it is the petitioners who have the burden to discharge in establishing the
proof of their case, he argued that they failed woefully to discharge that
burden. This is because, the only evidence the petitioners proffered in
proof of their many allegations are the pink sheets. According to Mr.
Quashie-Idun, the pink sheets perse cannot prove the case for the
petitioners without resort to the primary records which learned counsel for
the 3rd respondents referred to.

321
It is definitely not in dispute that the petitioners have made the
statements of Poll and Declarations of results – “P ink Sheets” as
the bedrock or alter ego of their case.

I have examined in detail the characteristics of a pink sheet, elsewhere in

this judgment. Suffice it to be that, evidence abounds conclusively in this
case that it is the pink sheets that are used to tally results on the
constituency collation sheets at the constituency collation centres.

These are in turn transmitted to the 2nd respondent’s strong room and used
for the purpose of declaration of the results. I am fairly well convinced that
a similar procedure was used in the declarations of the 2012 presidential
election results.

In my opinion, whenever the petitioners have through a pink sheet, cast

doubts on the authenticity or correctness of a result declared at a polling
station, for purposes of the principle of producing evidence on the balance
of probabilities, as provided for in sections 10, 11 and 12 of the Evidence
Act, 1975, NRCD 323, that duty appears to have been discharged until an
explanation is given as to why it ought not to be presumed to have been
discharged. The only institution or body that can give such an explanation
is the 2nd respondent.

As a matter of fact, from the evidence, the only record of the election
given the contesting parties are the pink sheets. If therefore an issue arises
about this or that polling station in relation to it’s pink sheets which have
been produced by the party upon whom the burden lies in law, then under

322
such circumstances, the burden would be deemed to have shifted to the
respondents, especially the 2nd respondent to call evidence in rebuttal.

KPMG

It is also an undeniable fact that the petitioners case in respect of the pink
sheets has been changing consistently like the face of a cameleon. Indeed
from an initial figure of 11,916 pink sheets which they claimed they filed,
to a reduced number of 11,138, then to the KPMG counts of the following:

1. 13,926 - actual number of pink sheets counted from the

Registrar’s set. Out of this, 8675 are unique.

2. 9,856 were counted from the presiding Judge’s set.

3. 1,545 pink sheets initially unidentified.

4. 10,119 as per Table 1A of the volume 2A page 160 of the

address are the number of pink sheets the petitioners now
claim to be relying upon.

They give a breakdown of this as follows in their address:

Registrar’s set (KPMG) - 7999

Registrar’s remarks (KPMG) - 690

323
register, ballot booklets, proxy voters list and the Biometric verification device
before he opens the ballot box to sort and count the ballots.

However I am not convinced that no entry in B1 by itself is evidence of over-

voting without establishing the number of registered voters at the polling station.
The number of registered voters could be easily verified or ascertained from the
Voters register of the particular polling stations which every candidate /Party had
copies. Having procured the number of voters on the voters register, then the
Petitioners should demonstrate the occurrence of over-voting by using any of the
definition of over-voting as defined variously by the parties. The Petitioners having
failed to provide such evidence cannot legitimately claim the absence of any entry
in B1as evidence of over-voting.

There were also instances where C1 or the whole of C columns were blank and the
Petitioners claim this was also evidence of over-voting but for the reasons given
above there is no empirical evidence to show this was the case.

Furthermore some of the Pink sheets under the MB-C series were not full pink so
there was no basis for determining whether there was over-voting or not. The
2ndPetitioner said under cross-examination that he deleted 53 of such pink sheets
from the list after giving evidence.

We take judicial notice of the factthat there was immense pressure on the presiding
officers, election officials and even the polling and counting agents on the day of
the elections, the majority of whom has no previous experience in election
procedures. The EC officials and presiding officers may have made some clerical
errors; but there is no evidence upon which mischief or advantage can or should be
attributed thereto. This is not a phenomenon peculiar to Ghana alone.

166
In Opitz vs. Wrzesnewskyj SCC 55, ([2012] 3 S.C.R. in which the Supreme Court of
Canada held as follows in paragraph 46:

(46) ‘The practical realities of election administration are such that

imperfections in the conduct of elections are inevitable. As recognized in
Camsell v. Rabesca, [1987] N.W.T.R. 186 (S.C.), it is clear that “in every
election, a fortiori those in urban ridings, with large numbers of polls,
irregularities will virtually always occur in one form or another” (p. 198). A
federal election is only possible with the work of tens of thousands of
Canadians who are hired across the country for a period of a few days or, in
many cases, a single 14-hour day. These workers perform many detailed
tasks under difficult conditions. They are required to apply multiple rules in
a setting that is unfamiliar. Because elections are not everyday occurrences,
it is difficult to see how workers could get practical, on-the-job experience.”

One other factor which was lacking and need to be mentioned is the absence of a
complaint. The Petitioners led no evidence on events at the polling stations except
by one affidavit evidence of one Peter Awuni a parliamentary candidate for the
NPP, that the 2nd Petitioner annulled the results of Kuligona, Nanyeri, Bongni and
Langbesi Police Station polling stations, in the Nalerigu- Gambaga constituency
because the ballots counted at the polling stations exceeded the number of persons
verified by the BVD by one or two people.

Mr Tsikata submits that:

“[t]he Petitioner fails to appreciate that in the absence of any person being
even alleged to have voted twice or illegally, or any person having been
identified as having made a complaint of over-voting, whether formally or
informally, merely invoking entries on the administrative portion of pink
sheets which have been shown to contain errors cannot meet the burden of
proof on the Petitioners. His testimony continues to dwell exclusively on
these administrative entries.”
Mr Lithur also submits:

167
“In determining whether or not there was over voting in the December 2012
election, in terms of Petitioners’ definition, it is important to note that Petitioners
have neither challenged the tallied results at the polling stations nor do they
challenge the collation of the results at constituency collation centres. Their case,
as stated on numerous instances including in the 2nd Amended Petition and also in
their oral testimony in court, is limited to the entries made on the voting accounting
sections of the pink sheets. The only evidence being relied on by Petitioners in
proof of over-voting, therefore are those entries,”
This brings me to the issue:

Whether the over-vote if anyshould lead to an annulment of the total votes cast at
the polling station?

This Honourable Court was invited to advert its mind to the fact that, in an election
at a polling station shown to have been affected by over-voting, it is not possible to
determine which of the votes cast constitutes the invalid votes and, therefore,
which votes cast count as the lawful votes. The practice, therefore, has been to
annul all the results of the polling stations where they are proven to have occurred

I do not subscribe to this suggestion and its application in this case. In seeking to
annul votes, it needs to be clear which polling stations are being called into
question. The confusions about exhibits have 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. Moreover the few instances of over-
voting that was demonstrated during the hearing, going by the average of those
votes; there is no mathematic chance that the results in those polling stations would
change the outcome of the results at the polling station. Even if the aggregate of
the actual over-vote in polling stations where over votes is established and
proportionally deducted from the votes of each candidate, it would not affect the
results. Even if they are deducted from the winning candidate’s vote it would still
not affect the votes.
168
My brethren who took the position that there was over- voting and so the votes are
to be annulled for a re-run of polls in the affected were unable to ascertain and
provide the total number of over votes from the pink sheets for me to change my
position on this claim.

The Petitioner could not establish to my satisfaction whether the number of votes
cast in these polling exceeded the number of registered voters as indicated in the
Voters Register. They had copies of those registers but only produced one to show
there was double registration at the Mampong Anglican School.

The Petitioners have not led sufficient evidence for me to come to the conclusion
that there was clearly a mathematical chance that the results could change then the
votes would have to be annulled and a re-run held. But then in many instances the
over-voting was either one or two, and certainly that cannot lead to annulment of
the entire votes.

Dr Bawumia referred to a statement made by Dr Afari-Gyan before the election

that if the ballots are counted at the end of the day and it is found that even one
ballot exceeds what was issued to voters verified to vote; the results of that polling
station would be annulled.

I find this pronouncement disturbing as it is not based on any statute or any

constitutional instrument made by him as he is empowered to do under Article 51
of the Constitution. The directive that an over vote by one ballot would invalidate
the whole results of a polling station when despite the over vote a winner is clearly
ascertainable, is contrary to both the letter and the spirit of the Constitution and
contravene articles 42 on the right to vote.

In Tehn-Addy V Electoral Commission [1996 – 97] SCGLR 589

169
Acquah JSC (as he then was) at page 594:

“Whatever be the philosophical thought on the right to vote, article 42 of the

1992 Constitution of Ghana makes the right to vote a constitutional right
conferred on every sane Ghanaian citizen of 18 years and above.
As a constitutional right therefore, no qualified citizen can be denied of it,
since the Constitution is the supreme law of the land.
Article 45 entrusts the initiation, conduct and the whole electoral process on
the Electoral Commission and article 46 guarantees the independence of the
Commission in the performance of its task. A heavy responsibility is
therefore entrusted to the Electoral Commission under article 45 of the
Constitution in ensuring the exercise of this constitutional right to vote. For
in the exercise of this right, the citizen is able not only to influence the
outcome of elections and therefore the choice of a government but also he is
in a position to help influence the course of social, economic and political
affairs thereafter. He indeed becomes involved in the decision-making
process at all levels of governance.”
The underlined words above informs my opinion that this directive cannot override
a constitutionally protected right to vote.

I respect the views and the authorities cited by Mr Addison, to support the
Petitioner’s request to annul the polls in polling stations where there is proof of
over-voting.

He referred to the dictum of the Us Supreme Court in the case of Reynolds v. Sims
377 US, 533, 555, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) which is to the effect
that:

“The right of suffrage can be denied by a debasement or dilution of the

weight of a citizen’s vote just as effectively as by wholly prohibiting the free
exercise of the franchise.”

170
I absolutely affirm the concept that over voting debases and dilutes the weight to
be accorded each individual vote. So where in Lamb v. McLeod (1932) 3WWR
596,cited by counsel the subject matter of the complaint was the validity of 17
votes in an election where the margin of victory between the candidates was only
5, the court rightly in my view annulled the votes on the grounds, inter alia, that:

“It cannot be said that there was an electing of a Member of Parliament by

the majority” as the intrusion by wrongdoers made “it impossible to
determine for which candidate the majority of qualified votes were cast”.

However, it is my considered opinion that with the margins of over-vote involved

in each of the impugned polling stations, it was possible to determine the winner
at each polling station where over-voting occurred and accordingly Lamb vs.
Macleod is inapplicable to this case.

The Plaintiffs have not been able to discharge the burden of persuasion in
accordance with the Evidence Act. Accordingly I would also dismiss this category
of irregularity.

SAME SERIAL NUMBERS

This head of irregularity does not violate any statutory regulation.

The claim under this head is stated in Paragraph 20 Ground 1(b) of the 2nd
Amended Petition as follows:

“That there were widespread instances where there were the same serial
numbers on pink sheets with different poll results, when the proper and due
procedure established by 2nd Respondent required that each polling station

171
 have a unique serial number in order to secure the integrity of the polls and
the will of the registered voters.”

According to Petitioners, the serial number is the only security feature which is
pre-embossed on the pink sheet from the printers. The polling station name and
polling code is entered in the space provided on the form by hand by the presiding
officer. Once a pink sheet is filled the serial number locks the polling station name
and code to that polling station for good. However Dr Bawumiaadmitted under
cross examination that the complaint relating to the serial numbers was not derived
from any constitutional or statutory infraction but as the numbers was huge they
were serious and inferentially must have affected the outcome of the elections.

He said the use of duplicate serial numbers was a major ‘instrument’ for the
perpetuation of the constitutional statutory violation of the law, irregularities and
malpractice in this election.

It happened that two sets of pink sheets for the presidential elections were printed.
Dr Afari-Gyan explained that the order for printing was made before the filing of
nominations and balloting for positions on ballot papers was done. He said they
wanted space for 18 names and this was divided into two sets, in anticipation that a
lot of candidates will file nominations. As it happened only 8 candidates
successfully filed their nomination papers. So after the balloting for position the
EC informed the printers who printed the 8 names on both sets.

Instead of distributing one set, the EC unwisely distributed the booklets randomly
and hence two sets of pink sheets with the same serial numbers were found at
different polling stations.

172
There was much wrangling between counsel for the Petitioners, Mr Addison, and
Dr Afari-Gyanover the significance of pre-embossed serial numbers on the pink
sheets by the printers. According to counsel, in order to guarantee the security of
electoral materials, it has been the practice of the EC among other measures to pre-
emboss electoral materials with unique serial numbers. As a result ballot papers,
ballot boxes tamper proof envelopes, stamps and the pink sheets have pre-
embossed serial numbers.

Dr Afari-Gyan, on the other hand said, whereasRegulation26 (2) of CI 75 requires

that numbers are printed on every ballot paper, there is no such requirement for the
printing of pink sheets. The serial numbers on the pink sheets are generated by the
printing firm to enable the EC to keep count of the number produced. He said the
pink sheets are distributed randomly He said the serial numbers has absolutely no
relevance to the compilation and declaration of result as polling stations are
identified by their unique codes

Dr Afari-Gyan explained further that, if two polling stations have pink sheets with
the same serial number that will in no way have any effect on the validity of the
votes cast. As each of the two polling stations will have different polling codes and
names. They will have a different voter’s register, different presiding officers,
election officials and polling agents, and different results. When the results are
taken from the polling stations to the collation centres, they are dealt with on the
basis of polling stations codes and not serial numbers.

A cursory check of the pink sheets confirms that the polling stations concerned
have different identities, different numbers of registered voters, different results,
and different election officers and polling agents. Accordingly I do not see how
with the explanation by the EC as to how two sets of pink sheets were printed and

173
randomly distributed could affect votes cast at different polling stations. Even
though it was suggested by the petitioners that any one up to mischief can sit in his
or her house and fill in the duplicate pink sheets with correct polling station code
and name and sign them; this is farfetched as the pink sheets are filled in the open
at the polling stations in full glare of the public and endorsed by the agents and the
agents receive a duplicate copy thereof there and then, and so there is no
opportunity for any swap to take place. The pink sheets tendered by the Petitioners
were collected from their polling agents present at the polling station. There was
no suggestion of a swap of pink sheets at the trial under this head of claim.

Although the handling of the order of printing of the pink sheets and its random
distribution is not the best of administrative decisions, the petitioners have not
shown in any way as to how it interfered or compromised the vote. I will therefore
without hesitation dismiss this head of claim as baseless.

22 UNKNOWN POLLING STATIONS

Before voting day, the EC gave the political parties and the independent
presidential candidates a list of 26,002 polling stations in which elections were
tobe conducted. The petitioners in scrutinizing the pink sheets claimed they
discovered that voting occurred in 22 polling stations which were not included in
the list of the 26,002 polling stations supplied them by the EC.

The EC denied this claiming the presidential results were declared on the results
from 26, oo2 polling stations. The reason why the Petitioners described them as
unknown is because polling codes and polling station names in some instances
were wrongly quoted. The EC was able to identify those polling stations In respect

174
of these 22 polling stations supervised elections took place there and the results in
those stations. They were endorsed by the party agents.

In any case, from the pink sheets that the petitioner supplied, there is proof that
there were supervised elections those polling stations. The 1st Petitioner sent his
polling agents to those 22 polling stations and that the agents did sign those pink
sheets and collected duplicate copies. In so far as the Petitioners sent polling agents
to the said polling stations, they cannot say they are unknown.

We find no merit in this complaint and it is therefore dismissed.

SAME POLLING STATION CODE WITH DIFFERENT RESULTS

Each polling station is identified by its name and by its polling code. The polling
code is unique to each polling station.

The Petitioners further claimed that there were instances where different results
from different polling stations were recorded on pink sheets bearing the same
polling station code. The petitioner submits that where two polling stations bear the
same polling station code, it is not possible to establish which of the results is
genuine.

The EC explained that the situation where the same polling station code shows
different polling station results arises where the same polling station code is used
for special voting and regular voting, or where the polling station is split due to the
huge number of voters. Where the station is split into two the polling station code
will end with the letter A or B.

175
Mr Addison submits that special voting results are not recorded on pink sheets and,
accordingly, the explanation proffered by Dr Afari-Gyan for pink sheets with
duplicate polling station codes is untenable and false. He based his submission on
the fact that provision is made for entry of special voting results of the whole
constituency in the first column on Constituency Results Collation Form, without
reference to any polling station name or code. [In stark contrast, the results of votes
cast in any constituency on general election day are entered on the Constituency
Results Collation Form by reference to the different polling station codes in that
constituency.]

Counsel further referred to Regulation 21 (11) on the procedures by which the

176
 roles and the need to guard against ex cesses. On this basis,
w e invite your Lordships to ex ercise judicial restraint and to
defer to the Electoral Com m ission on m atters that touch and
concern the ex ercise of its core functions.

I n the specific context of this case, the fact that Your

Lordship have had to painstakingly pore over pink sheets for
m onths and listen to tedious testim ony on technical aspects
of elections could havebeen avoided if the P etitioners w ere
com pelled to settle their grievances, in the first instance,
through the adm inistrative process available for redress
before initiating their petition. I n this w ay, all that Your
Lordships w ould have been required to do in the ex ercise of
your pow er under article 64 of the Constitution w ould have
been to review the decision of the Electoral Com m ission in
line w ith the constitutional standard of review under article
23 of the Constitution and decide w hether or not it w as
reasonable and in accord w ith the requirem ents im posed by
the P residential Elections Act and the P ublic Elections
Regulations.”

At this stage, let me quote also verbatim the provisions of article 23 of the
Constitution which provides as follows:-

Administrative Justice

“Adm inistrative bodies and adm inistrative officials shall act

fairly and reasonably and com ply w ith the requirem ents

335
 im posed on them by law and persons aggrieved by the
ex ercise of such acts and decisions shall have the right to
seek redress before a court or other tribunal”.

Evidence abounds in this Court that the first point of call by the Petitioners
was to send a letter of complaint to the Chairman of the 2nd Respondents
in which they catalogued a number of irregularities and sought his
intervention.

Exhibit N.D.C 43, which is a petition to the 2nd respondents by the

petitioners which was tendered by Counsel for the 3rd respondents through
the 2nd petitioner on 14th May 2013.

“The Returning Officer 9th December 2012

Presidential Election 2012
Electoral Commission
Accra

Dear Sir

RE: REQUEST FOR AN AUDI T OF VERI FI CATI ON M ACHI NES

AND RECOUNT OF THE P RESI DENTI AL BALLOT

I write as Chairman of NPP to express concerns of our Party over the

conduct of this year’s general election, particularly with regards to
the Presidential poll. I am doing so because I believe that the proper
conduct and declaration of results of a credible process is the surest
way to promote the peace and stability of our democratic nation.

336
I have attached here a copy of a statement I have issued, that has
set out in detail our concerns.

I ask that you consider the widespread and systemic abuse of the
electoral process, witnessed across the country and aided by H.E the
President, John Dramani Mahama’s statement for people to vote even
if not verified by the machines, which is clearly unlawful, some of
which are cited in our attached statement.

W e request that you, as the Returning Officer of the

P residential Elections,

(i) Cause an audit of the Verification M achine to

establish that it tallies w ith Constituency Collated
signed results and
(ii) Order a re-collation of the presidential ballot at the
constituency level to help establish the credibility
and accuracy of this year’s P residential election.

This in m y view w ould assist considerably to allay public

anx iety, w hich is grow ing hour by hour and due to the
announcem ents being m ade in the Ghanaian m edia. I t
w ould also obviate any legal and protracted judicial
proceedings on the issues and perm it the resolutions of our
concerns prom ptly, to enable due declaration to be m ade.

337
 In the light of the above concerns, we request for an immediate
meeting with your good self to find a resolution to these matters
before you announce the results of the 2012 elections.

Yours truly,
Jake Otanka Obetsebi-Lamptey
National Chairman, New Patriotic Party”

In the light of the above scenario, it is my opinion that, the Petitioners

were pushed to this court albeit prematurely by the indecent haste of the
Chair of the 2nd Respondent who took less than a day to address the
concerns raised in the above petition and asked the petitioners to go to
court.

Perhaps, if the 2nd Respondent had exercised a little bit of tolerance and
discretion which are hallmarks of the type of office which the Chairman
occupies, the quick resort to this court may have been avoided.

It should also be clear to all and sundry that time begins to run
immediately the Presidential Elections results have been declared by the
chairman of the Electoral Commission. This is further buttressed by article
64 (1) which provides a 21 day period within which the petition to
challenge the election of the President must be presented. As far as I am
concerned, the petitioners having been pushed to the wall by the 2nd
Respondent, they then had to act timeoulsy to ensure that time does not
run against them. In the circumstances I am unable to accede to learned
Counsel for 1st Respondent, Mr. Tony Lithur’s submissions in this respect,

338
questioning the proprietary or improprietary of the request considering the
independent nature of the Electoral Commission vis-à-vis the
Administrative bodies intended in article 23 of the Constitution 1992.

I am of the firm conviction that, the petitioners have lawfully and validly
invoked this courts jurisdiction under article 64 (1) of the Constitution 1992
and this court rightly assumed jurisdiction in the matter.

I cannot but agree with the petitioners that in a petition of this

nature, for the reasons stated hereunder, this Court can declare
as invalid the election of any candidate as a President of Ghana,
as the quotation from the written address of learned Counsel for
the Petitioners, Mr. Philip Addison clearly depicts as follows:-

“REASONS TO DECLARE INVALID THE ELECTION OF A

CANDIDATE AS PRESIDENT

(a) The candidate declared elected as President of Ghana at the

presidential election did not, in fact, obtain more than fifty percent
(50%) of the total number of valid votes cast at the election;

(b) There has been non-compliance with or violations of the Constitution,

the Regulations or any other law relating to the conduct of the
election and that the non-compliance/violations affected the result of
the election;

(c) The election was tainted by the perpetration of a corrupt, or other

339
 criminal act, misconduct or circumstances which reasonably could
have affected the outcome of the election;

(d) The candidate declared elected as President of Ghana was at the

time of the election not qualified or disqualified for election as
President of Ghana in terms of article 62 of the Constitution.”

OVER-VOTING

Regulation 24 (1) of C. I. 75 provides as follows:

“A voter shall not cast more than one vote when a poll is taken”

When the above provision is compared with the entries in columns A,B & C
that are required to be filled in on the pink sheets by the Presiding Officers
before the commencement of polls and in the case of Column C after polls
but before counting, then a somewhat clearer picture of what exactly over
voting means can be imagined. This is because, if columns A,B and C are
entered correctly on the pink sheets, then the number of ballots issued to
the polling station will be known, the range of the serial numbers of the
ballot papers will also be known as well as the number of voters on the
polling station register, including the number of ballots issued to voters on
the polling station register.

In column B for example, the number of voters on the polling station

register will be stated and filled in together with those on the proxy list.
The total number of the two items will give the total number of voters
eligible to vote at the polling station.

340
If therefore at the end of the polls any of the following scenario does
occur, then something irregular has occurred.

1. The total valid votes cast as found in the ballot box exceeds total
number of ballots issued out.

2. The total valid votes cast as found in the ballot box exceeds the total
number of voters on the register eligible to vote at that polling
station.

Is this the phenomenon that is called over voting? In this case, the
petitioners, speaking through Dr. Bawumia, the 1st and 3rd Respondents,
speaking through Johnson Asiedu Nketia, and Dr. Afari Gyan for the 2nd
respondents have all given their own definitions of what is over voting. I
will therefore look at all these various definitions and attempt to see if a
common thread runs through them.

DR. BAWUMIA’S DEFINITION

“Q. Can you tell the court what you mean by over voting?

A. Over voting comes in two forms. Essentially w e have a principle

of one m an one vote as w e have in the Constitution in the

law s of Ghana. The tw o form s of over voting. First, over voting
would arise if the total votes in the ballot box as recorded on the
face of the pink sheets exceeds the voters register at the polling
station as recorded on the face of the pink sheet. Secondly, over

341
 voting would arise if the total votes in the ballot box as recorded on
the face of the pink sheets ex ceed the total ballots issued to
voters recorded in Section C1 and C2 including proxy voters. So the
total votes in the ballot box if they exceed the number of voters you
have given ballot to, to vote then there is over -voting. So if hundred
people line up and you issue them 100 ballots and you count at the
end of the day and you find 150 ballots in the ballot box, then you
have over voting. I m ust add that this phenom enon of
over voting w as one that the 2 nd respondent w as very
em phatic on before the election. The Chairm an of the 2 nd
respondent m ade it very clear and for good reason, that if
the ballots are counted at the end of the day and it is found
that even one ballot ex ceeds w hat w as issued by voters
verified to vote,the results of that polling station w ill be
cancelled. My Lords this was because if that happens even if you
have one ballot above what was issued, then the integrity of the
entire voting process at that polling station is compromised. And yet
my Lords the 2ndrespondent not only made this clear but actually put
this into practice during the 2012 elections.”

From the above quotation of 2nd Respondent’s testimony on 17th April

2013, the following significant scenarios emerge for consideration. These
are

i. If the total votes in the ballot box as recorded on the pink sheets
exceeds the voters register as recorded on the pink sheets, then
there is over voting.
342
 ii. The second scenario is when the total votes in the ballot box as
recorded on the face of the pink sheets exceed the total ballots
issued to voters as recorded in columns C1 and C2 including proxy
voters then there is over-voting as well.

In order to understand this second scenario, it must be clear what C1 and

C2 refers to. The C1 and C2 are columns in the Ballot Accounting section of
the pink sheet, normally referred to as the C column. This is to be filled in
at the end of the poll but before the commencement of counting.

C1 is to the following effect – what is the number of ballots issued to

voters on the polling station register?

C2 has the following question – what is the number of ballots issued

to voters on the Proxy Voters List?

If this is the state of what the 2nd Petitioner meant by over-voting, then
why did learned counsel for the 1st Respondent state thus in his address

“On what constitutes over voting, the 1st Respondent states as follows:-

“There is some divergence of opinion between the parties about what

constitutes over-voting. Petitioners claim there are three definitions.
The first one is the situation in w hich the ballots in the sealed
box exceed the num ber of registered voters in a particular
polling station. That definition is accepted by all the parties.
343
 (II) Voting without biometric verification
(III) Same serial numbers on “pink sheets” with
different results.
4 Exclusive Instances of the joint occurrence of:

(I) Over voting due to total votes exceeding ballot 34,167

papers issued to voters or the polling station
voters register.
(II) Voting without biometric verification
(III) Same serial numbers on “pink sheets” with
different results.
(IV) absence of presiding officers or assistants’
signatures on “pink sheets”.
5. Exclusive Instances of the joint occurrence of: 9,004

(I) Over voting due to total votes exceeding

ballot papers issued to voters or the
polling station voters register.
(II) Voting without biometric verification
(III) Absence of presiding officers or assistants’
signatures on “pink sheets”.
6 Exclusive Instances of the joint occurrence of: 425,396

(I) Over voting due to total votes exceeding

ballot papers issued to voters or the polling
station voters register.
(II) Same serial numbers on “pink sheets” with
different results.
7 Exclusive Instances of the joint occurrence of:

(I) Over voting due to total votes exceeding 93,035

ballot papers issued to voters or the polling
station voters register.
(II) Same serial numbers on “pink sheets” with
different results.
(III) Absence of presiding officers or assistants’
signatures on “pink sheets”.
8 Exclusive Instances of the joint occurrence of:

I. Over voting due to total votes exceeding

186
 ballot papers issued to voters or the polling 34,023
station voters register.
II. absence of presiding officers or assistants’
signatures on “pink sheets”.
9 Exclusive Instances of voting without biometric 137,112
verification.

10. Exclusive Instances of the joint occurrence of:

(I) voting without biometric verification 395,529

(II) Same serial numbers on “pink sheets” with
different results
11 Exclusive Instances of the joint occurrence of:

(I) voting without biometric verification

(II) Same serial numbers on “pink sheets” with
different results
(III) Absence of presiding officers or assistants’
71,860
signatures on “pink sheets”.
12 Exclusive Instances of the joint occurrence of:

(I) voting without biometric verification 21,071

(II) Absence of presiding officers or assistants’
signatures on “pink sheets”.
13 Exclusive Instances of Same serial numbers on 2,583,633
“pink sheets” with different results

14 Exclusive Instances of the joint occurrence of:

(I) Same serial numbers on “pink sheets” with 352,554

different results
(II) Absence of presiding officers or assistants’
signatures on “pink sheets”.
15 Exclusive Instances of absence of presiding 117,870
officers or assistants’ signatures on “pink sheets”.

16 Exclusive Instances of same polling station codes 687

with different results.

187
17 Exclusive Instances of the joint occurrence of:

(I) over voting due to total votes exceeding ballot

papers issued to voters or the polling station
voters register
(II) voting without biometric verification
(III) Same serial numbers on “pink sheets” with
different results
(IV) Same polling station codes with different
results.
18 Exclusive Instances of the joint occurrence of: 26,208

(I) Same serial numbers on “pink sheets” with

different results
(II) same polling station code with different
results
19 Exclusive Instances of the joint occurrence of: 7,160

(I) same serial numbers on “pink sheets” with

different results
(II) absence of presiding officers or assistants’
signatures on “pink sheets”.
(III) same polling station code with different
results
20 Exclusive Instances of the joint occurrence of:

(I) over voting due to total votes exceeding ballot 6,537

papers issued to voters or the polling station
voters register
(II) same serial numbers on “pink sheets” with
different results
(III) same polling station codes with different
results
21 Exclusive Instances of the joint occurrence of: 671

(I) voting without biometric verification

(II) Absence of presiding officers or assistants’
signatures on “pink sheets”.
(III) same polling station code with different results

188
22 Exclusive Instances of the joint occurrence of: 7,920

(I) voting without biometric verification

(II) same serial numbers on “pink sheets” with
different results
(III) same polling station code with different results
23 Exclusive Instances of the joint occurrence of:

(I) over voting due to total votes exceeding ballot 4,855

papers issued to voters or the polling station
voters register
(II) same serial numbers on “pink sheets” with
different results
(III) absence of presiding officers or assistants’
signatures on “pink sheets”
(IV) same polling station code with different
results
24 Exclusive Instances of the joint occurrence of:

(I) voting without biometric verification

(II) same serial numbers on “pink sheets” with
different results 3,471
(III) absence of presiding officers or assistants’
signatures on “pink sheets”
(IV) same polling station code with different
results
25 Exclusive Instances of the joint occurrence of:

(I) over voting due to total votes exceeding ballot

papers issued to voters or the polling station
voters register 1,787
(II) voting without biometric verification
(III) same serial numbers on “pink sheets” with
different results
(IV) absence of presiding officers or assistants’
signatures on “pink sheets”
(V) same polling station code with different
results
26 Exclusive Instances of 28 locations which were not 9,757

189
 part of the twenty-six thousand and two (26,002)
polling stations created by the 2nd Respondent
prior to the December 2012 elections for purposes
of the election but where elections took place.

GRAND TOTAL
4,670,504

Respondent in the presidential election held on 7th and 8th

December 2012.

The 1st Respondent was the presidential candidate of the National

Democratic Congress (NDC), the 3rd Respondent herein in the
December 2012 presidential Election and the person declared by
the 2nd Respondent on 9th December 2012 as having been validly
elected as president of the Republic of Ghana following the
presidential election.

The 2nd Respondent is the constitutional body established by Article

43 of the 1992 constitution and the provisions of the Electoral
Commission Act of 1993 (Act 451) mandated under Art. 45(c) and
section 2(c) of the constitution and the Act respectively to conduct
and supervise public elections and referenda in Ghana and to
declare the results thereof in accordance with the constitution and
the law.

The 3rd Respondent which was later joined as a party to the action
on its own application is the political party on whose ticket the 1st

190
Respondent contested the election. In this action, the party is being
represented by its General-Secretary, Johnson Asiedu Nketia.

THE CASE OF THE PETITIONERS

The case of the petitioners is simple but very much involved. It is

their case that there were constitutional and statutory violations,
malpractices and irregularities in the conduct of the 2012
presidential elections and that these violations, malpractices and
irregularities affected the outcome of the elections. The main
categories of these they identified as follows:

i. Over-voting, that is to say, widespread instances of polling

stations where (a) votes cast exceeded the total number of
registered voters or (b) votes exceeded the total number of
ballot papers issued to voters on voting day in violation of
Article 42 of the Constitution and Regulation 24(1) of C. I.
75.

ii. Widespread instances of polling stations where there were

no signatures of the presiding officers or their assistants on
the pink sheets in clear violation of Article 49 (3) of the
Constitution and Regulation 36 (2) of C. I. 75.

iii. Widespread instances of polling stations where voting took

place without prior biometric verification in breach of
Regulation 30(2) of C. I. 75.

iv. Widespread instances where there were the same serial

numbers on pink sheets with different poll results, when
the proper and due procedure established by 2nd
Respondent required that each polling station have a

191
 unique serial number in order to secure the integrity of the
polls and the will of lawfully registered voters.

v. Widespread instances of polling stations where different

results were strangely recorded on the pink sheets in
respect of polling stations bearing the same polling station
code, when, by 2nd Respondent’s established procedure,
each polling station was assigned a unique code in order to
avoid confusing one polling station with another which
could not be explained by a reference to special voting.

vi. Twenty-three (23) locations where voting took place which

were not part of the twenty-six thousand and two(26,002)
polling stations created by the 2nd Respondent for purposes
of the December 2012 elections.

THE RESPONDENTS’ CASE

The Respondents on the whole denied the substance of the

petitioners claim. The 1st Respondent contended that even if there
were such occurrences in the December, 2012 elections, the
declared result of the election would not be affected. In the case of
Presiding Officers of the 2nd Respondent failing to sign the pink
sheets, the 1st Respondent further contended that such failure
could not invalidate the results. The claim of over voting was also
denied and so was the claim for voting without Biometric
verification challenged.

The 2nd Respondent, in further denial of the petitioners’ claim

sought to vehemently defend the presidential election. The
commission however partly admitted the incidents of presiding
officers not signing the pink sheets contending that these are

192
irregularities. It was its case that no body voted without being
biometrically verified.

The 3rd Respondent’s case was substantially the same as that of the
1St Respondent.

On 2nd April, 2013, this court set down the following issues for trial:

1. whether or not there were violations, omission, malpractices

and irregularities in the conduct of the presidential election
held on the 7th and 8th December, 2012;
2. whether or not the said violations, omissions, malpractices
and irregularities, if any, affected the results of the election.

To expedite the trial, the court decided that same shall be by

affidavit evidence. The parties were however given the option to
lead oral evidence. Oral evidence by any other person was to be
allowed only where the court was satisfied that there were
compelling reasons for so doing.

Following the order of the court, the parties filed affidavits in

support of their cases and also preferred oral evidence.

The 2nd petitioner filed a joint affidavit on behalf of the petitioners in

support of their case.

In paragraph 20 of the affidavit, the 2nd petitioner averred that

following complaints that the results being declared by the 2nd
Respondent were not accurate, a task force was set up by the 1st
petitioner and the NPP to investigate the results as declared in the
presidential election. He was placed to lead and direct the
193
investigation as the running mate of the 1st petitioner and also as a
person with proficiency in statistics.

The investigation involved examination of the statement of poll and

Declaration of the Result of the Office of president (“pink sheets”) of
the polling stations.

According to him, the polling stations results as captured on the

“pink sheets” constitute the “primary evidence” upon which the
election results were declared. The pink sheets were given to
representatives of the 1st petitioner as required by Regulation 36(3)
(b) of C. I. 75.

It is as a result of the investigation that the six main categories of

constitutional/statutory violations, commission irregularities and
malpractices were uncovered.

It is their case that these irregularities create opportunities for

electoral malpractices.

The 2nd

194
A. As I said just a moment ago, I will subject the situation to very

close scrutiny. There are a number of things that will have to

be done. I will not assume that the Presiding Officer had done
anything directly or wrongly, I will seek to redo what was
supposed to have beendone, I w ill look at the ballot papers
to find out w hether all of them fall w ithin the serial
range of the ballot issued. I have narrated som e of
these things before that I w ill go through the things
that I m entioned. But I m ust tell you that, I m ust do
everything possible to m ake sure that indeed, there
are ex cess votes because w e are dealing w ith not
abstract num bers but votes of people w ho have a
constitutional right to take part in the choice of their
leaders.”

Based on all the above pieces of evidence, learned Counsel for the 1st
Respondent finally concluded his submission thus:

“It is clear that, Petitioners have taken a very unsustainable and

unrealistic position in respect of what would constitute over voting.
Their position is that you look only to the form and not the
substance. In doing so, they discount any other source of
information, including the primary sources from which one can verify
the information on the voting accounting section of the pink sheet. In
fact, they make no allowance for any clerical or arithmetic errors on
the part of officials of 2nd Respondent in filling the said ballot

353
 accounting section, and, according to them, whatever information is
on the voter accounting section is sacred. In the words of 2nd
Petitioner.

“You and I w ere not there, the evidence is on the face of the
pink sheet.”

Learned Counsel for the 1st Respondent then referred to the Canadian case
of OPITZ and quoted from pages 38 and 39 of the report to draw
necessary comparison, to the effect that, the imperfections of the Presiding
officers in filing the forms should therefore not result in the annulment of
the votes of the affected polling stations affected by the error entries.

“Juxtaposing the evidence in this case with the Canadian case, this is what
the 1st Respondent’s state:

This situation is not different from the one described by Dr. Afari-
Gyan in relation to the temporary officers that 2nd Respondent
employs to run general elections. The imperfections of the Presiding
Officers in filling the forms should therefore not result in the
annulment of the votes at the affected polling stations. Indeed on
pages 38 and 39 (paragraph 57) of the Opitz case the Canadian
Supreme Court held that

“In our view, adopting a strict procedural approach creates a

risk that an application under Part 20 could be granted even
where the result of the election reflects the will of the electors

354
 who in fact had the right to vote. This approach places a
prem ium on form over substance, and relegates to the
back burner the Charter right to vote and the
enfranchising objective of the Act. It also runs the risk of
enlarging the margin of litigation, and is contrary to the
principle that elections should not be lightly overturned,
especially w here neither candidates nor voters have
engaged in any w rongdoing. Part 20 of the Act should have
be taken by losing candidates as an invitation to examine the
election records in search of technical administrative errors, in
the hopes of getting a second chance”.

Learned Counsel continued as follows:

“By contrast, if a vote cast by an entitled voter were to be

rejected in a contested election application because of an
irregularity, the voter would be irreparably disenfranchised.
This is especially undesirable w hen the irregularity is
outside of the voter’s control, and is caused solely by
the error of an election official”.

SUBMISSION OF 2ND RESPONDENT

On his part, learned Counsel for the 2nd respondent, James Quashie-Idun
referred copiously to the definitions of over voting and the statutory
definitions as well as the classical definition of Dr. Afari Gyan already
referred to supra. Learned Counsel also referred to Regulation 36 (2) (a) of
C. I. 75 to buttress his point in addition to Regulation 24 (1) of C. I. 75

355
already referred to supra and of particular importance to the submission of
learned Counsel for the 2nd Respondent is his reference to exhibits EC 8,
EC9 and EC10 which were all tendered by the 2nd respondent’s witness Dr.
Afari-Gyan to debunk the allegations of over voting in some three polling
stations.

Learned Counsel also reiterated the earlier contentions of the 1st and 3rd
respondents to the effect that the evidence offered by the petitioners on
their 2nd definition of over voting which is based entirely “on the face of the
pink sheets”, are based only on errors made in completing the ballot
accounting part of the pink sheets.

Counsel concluded that if any over-voting had occurred, it would have

been detected during the counting of votes and the Polling agents would
have protested. Since there were no protests, Learned Counsel concluded
that there were no instances of over voting and urged this head of claim to
be dismissed.

SUBMISSION BY COUNSEL FOR 3RD RESPONDENTS

Even though the submissions of learned Counsel for the 3rd respondent
Tsatsu Tsikata are not fundamentally different from the other respondents,
there are some striking differences which I need to highlight.

In the first place, the phenomenon of blank portions in the C and

sometimes D columns of the pink sheets had been highlighted. In this
respect I cannot but agree with learned counsel for the 3rd

356
respondent that it is wrong to deduce that any blank on column C
or D amounts to over voting.

However, what has emerged from the very extensive and rigorous cross-
examination of Dr. Bawumia by Counsel for 3rd respondents is that, there
were indeed entries on some of the pink sheets of the polling stations
which on the face of it gave the impression that there was over voting. But
the respondents contend that these are only clerical errors.

Secondly, learned counsel made reference to exhibits of polling station pink

sheets outside the range of exhibits mentioned in the affidavit of the 2nd
Petitioner. So far as I am concerned, the real issue for
determination is whether there was any instance of over-voting
as denoted by the definition of over-voting and whether those
particulars exhibits i.e. polling station pink sheets had been
captured by the KPMG report, and is also part of the range of exhibits
mentioned in the affidavit.

If it is captured by the KPMG report, then this Court would have to

determine whether that instance of over voting affected the declaration of
the results, or constituted mere errors which only go to form and not to
substance.

Thirdly, it has to be noted that, the evidence of the petitioners on over

voting is really not based on directly accusing anyone of voting more than
once as is prohibited by law, but solely on the basis of entries made on the
pink sheets.

357
Learned counsel for the 3rd respondents, made his strongest attack to this
phenomenon of over voting in a very skating and concluding remark which
I consider as inappropriate use of language as follows:-

“The cavalier approach of the 2 nd petitioner tow ards the

votes of citizens, w hich m akes him eager, for instance, to have
votes cancelled because of his dogmatic view that it is figures on the
pink sheets that should be taken and not words, is totally at odds
with the significance that our Lordship have given in many cases
before this Court to the importance of protecting the right to votes of
the citizens of Ghana. Seefor instance Tehn-Addy v A.G. &
Electoral Com m ission 1997-98 1 GLR 47, Apaloo v
Electoral Com m ission 2001 – 2002 and Ahum ah-Ocansey v
Electoral Com m ission & Others, already referred to supra.”

Whilst not downplaying the constitutional significance of the

above cases, it must also be observed that, the importance of
entries made on the pink sheets should also not be glossed over
as being of no significance. This is because, if my understanding of the
evidence on record is anything to go by, then entries made on the pink
sheets, which constituted the primary source upon which constituency
collation centre results were collated and transmitted to the 2nd
respondents strong room in Accra and which formed the basis of the
declaration of the Presidential results by the Chairman of the 2nd
respondent which are under challenge in this Court then the pink sheets,
cannot be treated lightly, except in cases where it is clear that the pink
sheet entries are errors which can be corrected by reference to other more
358
authentic primary sources which may include entries on the pink sheets
itself, the polling station register and the B.V.D.

The Apaloo v Electoral Com m ission case referred to supra, is authority

for the proposition that once the Electoral Commission has published
Constitutional Instruments numbers C.I. 12 and C.I. 15 respectively which
had regulations dealing with identity cards used in an election and under
which the 1996 elections were held, there being no distinction between
photo I.D. and thumbprint cards, the subsequent publication by the
Electoral Commission of a Gazette Notice, containing directives limiting the
I.D cards to be used for the 2000 election to photo I.D cards only
constituted an indirect amendment of relevant portions of regulations in C.
I. 12 and C. I. 15 and this was held to be ultra vires articles 51 and 297 (d)
of the Constitution 1992.

This Apaloo case is also authority for the proposition that the authority
given to Presiding Officers and their assistants to verify and check the
identity of prospective voters cannot be delegated to candidates agents,
highlighting the maxim of “delegatus non potest delegare”. Delivering his
opinion in this case, my very respected brother, Atuguba JSC made the
following pronouncements.

“The ascertainment of the identity of a prospective voter is part of

the conduct of public elections and as the constitution places
that duty on the Electoral Com m ission, it can only do so by
itself and its proper agents… To surrender the judgm ent of
the P residing Officer as to the identity of a voter to the

359
 candidate’s polling agents, is in effect, to delegate that
function to those agents, contrary to articles 45 (c) and 46 of
the Constitution.”

It can therefore be seen clearly that despite the fact that the Supreme
Court upheld the constitutional right of the prospective voter of his right to
vote and was prepared to protect that right, the protection was done in
tandem with the other statutory provisions that the Electoral Commission
was permitted by article 51 of the Constitution to enact i.e. C.I. 12 and C.
I. 15 respectively.

In the instant case, it would appear that once the directives of what
constitutes over voting are in Regulation 24 (1) of C. I. 75, the Courts also
have a duty to purposively look at the effect of those provisions and the
constitutional right to vote.

Similarly, it should be noted that, the Tehn-Addy v Electoral

Com m ission case is also authority for the proposition that the right of a
citizen to register is an inalienable right which the Supreme Court observed
the Electoral Commission failed to register the plaintiff therein and
therefore enforced it.

I will however be comfortable with a proposition which states

that since the right of a citizen to vote is constitutionally
guaranteed by and under the Constitution, that right must always
be protected and defended to ensure that participatory rights
which are part of our democratic rights via the electoral process is
well guaranteed and secured.

360
In this case, the rights of the voters in the December 2012 presidential
election did not come under threat, and is still not under any threat. The
plaint of the petitioners is to invite this Court to annul results on the basis
of entries on the face of the pink sheets of what appears to them to be
infringements under the law. Is this a legitimate request or claim? I think
so. But this Court must be in a position to distinguish between
clear instances of over voting which arise from clear breaches of
the law in Regulation 24 (1) of C. I . 75 as against errors made by
the presiding officers in the filling of the pink sheets etc. For
example, if it is clear on the pink sheet, that instead of stating the correct
number of ballot papers that had been issued to a polling station as 350
made up of (2) 100 booklets (2) 50 booklets and (2) 25 booklets making 6
booklets in all, the Presiding officer merely states 6, but gives the range of
serial numbers from which the correct figure of 350 can be deduced then it
would be wrong to use such an entry to annul results.

In such an instance, once the information to correct the error made on the
pink sheet can itself be gotten from the pink sheet, then it should be
perfectly legitimate to use such an information to correct the error.

In situations of this nature the number of registered voters, and those who
actually were issued with the ballot would have exceeded the number 6
wrongly filled in on the pink sheet. Any mechanical interpretation of
the entries on the pink sheets will not only be absurd but lead to
incongruent results and consequences.

361
The Court should however use information on the face of the pink sheets
to correct this latent error. However, if the information to correct the error
on the pink sheet cannot be verified from the pink sheet, and that figure
had been used to declare the result, and if the wrong result has had an
effect on the declared result, then it should be possible to annul it, if there
are no credible primary sources of evidence like the polling station register
to be used to cross-check such an error entry.

In view of all the above discussions I will define over voting to mean
an instance where total votes cast as found in the ballot box
exceeds the total number of ballots issued out to voters at that
particular polling station.

So far as I am concerned, this definition should encompass all other

definitions be they classical or otherwise. This is because, votes cast as
found in the ballot box, be they valid or rejected votes would have been
issued based first after the voters have been verified by the machine and
also based on the polling station register. Thus, assuming there is a
100% turn out at a particular polling station, then the votes cast
as found in the ballot box will not and should not exceed, first the
ballots issued out and also total number of voters on the register
at that particular polling station including proxy voters.

It is only when there is a consistency between the entries on the

pink sheets and the primary sources which formed the basis upon
which the entries have been made and these include the polling
station register, ballots issued to the polling station and the

362
results as counted and declared that the entries on the pink
sheets can be said to be impeccable and not subject to any
variation, change or correction.

It has to be noted that, it is also possible to have a broad based definition

of over-voting which will link the total votes cast as found in the ballot box
with the number of voters on the polling station register. This is because,
whilst the number of voters on the polling station register is the maximum
number of persons entitled to vote at a polling station, the number of
ballots issued out to voters on the polling station register, represents the
actual ballots issued out to voters who turned out to vote.

This broad based definition will allow situations where the

Presiding officer has not made a diligent count of the ballots issued out
or did not fill in column C1 on the pink sheet to enable that determination
to be made using that formula.

What should be noted however is that, no matter what definition

is applied, the value is the same. The only problem is that, if a
Presiding officer has refused and or neglected to fill in column C or C1 in
particular, or columns A, B, C or D as has been found by me to have
happened in some cases, then the polling station voters register and the
record of ballots issued to this polling station remain the only authentic
sources by which the issue or phenomenon of over-voting can be verified.

For purposes of transparency, I believe the time has come for the 2nd
respondent’s to come out with a Constitutional Instrument to regulate and
direct the officers it engages for the conduct of elections in the country,

363
such that more severe sanctions than is currently applicable in PNDCL 284,
section 30 (a) & (e) can be applied to them when flagrant and inexplicable
infractions occur in their performance of their official duties has been
proven to have happened.

This phenomenon has become very critical because of observations I have

made in a very detailed study and analysis of pink sheets stated in Table
10A of volume 2B of the Petitioners address which is List of pink sheets the
Petitioners have relied on to prove the instances of over-voting, describing
them as (Respondents preferred Data Set) whatever that means.

In this examination, I found out that there were some clear instances of
over-voting. This resulted after comparison of the entries in C1 to Total
Votes in ballot box. Wherever there was an irregularity, resort is made to
other columns in the C column in order to account for the ballots.

When the ballots issued out cannot be reconciled with the ballots
found in the box using all available means of verification on the
pink sheet, then the conclusion is reached as an over- vote.

Secondly, the study and analysis revealed that there was either wrong
addition made of the entries on the pink sheets, or there was error on the
pink sheets. In such a situation, I think the errors have to be corrected if
possible by reference to primary sources of information.

Thirdly, there are instances where one can observe that the entries have
not been completed, or errors made in the filling process. Here again, if the

364
Admittedly, when the 2nd petitioner was in the box, and was
confronted with a number of “pink sheets” and asked to indicate
whether on their face there was any basis for saying there was over-
voting, he answered there was none.

They also included “pink sheets” on which A1 or B1 has a blank

interpreting this to mean zero.

I do not consider this interpretation as a valid basis in proof of over-

voting.

The polling stations affected are to be excluded from the polling

stations to be affected by the over-voting category as indicated in
volume 2B of the written address of counsel for petitioners using
Respondents preferred Data set.

After the written addresses have been filed, counsel for parties were
given the opportunity to react to the filed addresses but the figures
were not disputed.

ABSENCE OF PRESIDING OFFICER’S SIGNATURE

Article 49 of the 1992 constitution sets out voting at election and

referenda

“(1) At any public election or referenda, voting shall be by secret

ballot.

207
(2) Immediately after the close of the poll, the presiding officer
shall in the presence of such of the candidate or their
representative and their polling agents as are present, proceed
to count, at that polling station, the ballot papers of that
station and record the votes cast in favour of each candidate
or question.

(3) The presiding officer, the candidate or their representative and

in the case of a referendum, the parties contesting or their
agents and the polling agents if any, shall then sign a
declaration stating

(a) the polling station, and

(b) The number of votes cast in favour of each candidate or

question, and the presiding officer shall, there and then
announce the results of the voting at that polling station
before communicating them to the returning officer.”

The petitioners claim under this head is that in a number of polling

stations, the results of which were declared, the presiding officers
did not sign the “pink sheets’. It is their case that the signature is
crucial because it is a mandatory constitutional requirement but
not an administrative directory.

In all the petitioners were relying on 924 pink sheets which they
presented to DR. AFARI-GYAN who admitted them. He also
conceded that 905 more “pink sheets” were unsigned. Among these
are 191 included in the petitioners’ 924.

208
The pink sheets without the presiding officers’ signatures therefore
came to 1,638 involving 659,814.(sic)

The constitution, mirrors the will and aspirations of the Ghanaian

people and it is the supreme law of the land.

Article 1 speaks of the supremacy of the constitution.

1 (1) states that –

“The sovereignty of Ghana resides in the people of Ghana in

whose name and for whose welfare the powers of government
are to be exercised in the manner within the limits laid down
in this constitution.

(2) This constitution shall be the supreme law of Ghana and

any other law found to be inconsistent with any provision of
this constitution shall, to the extent of the inconsistency, be
void. The preamble of the constitution states that:

“IN THE NAME OF THE ALMIGHTY GOD

We the people of Ghana;

IN EXERCISE of our natural and inalienable right to establish

a frame work of government which shall secure for ourselves
and posterity the blessings of liberty, equality of opportunity
and prosperity;

209
 IN A SPIRIT of friendship and peace with all people of the
world; AND IN SOLEMN declaration and affirmation of our
commitment to Freedom, Justice, probity and Accountability;

The principles that all powers of Government spring from the

sovereign will of the people;

The principle of universal Adult suffrage;

The rule of Law;

The protection and preservation of Fundamental Human

Rights and Freedoms, Unity and Stability for our nation;”

DO HEREBY ADOPT, ENACT, AND GLUE TO OURSELVES

In the Interpretation Act, of 1960, section 27 states that –

In an enactment made after the passing of this Act, “shall”

shall be construed as imperative and -----

Article 49 (3) therefore imposes an obligation on the presiding

officer to sign before the declaration of the results. The reason for
this cannot be far fetched. He must sign to authenticate the

210
results. If he does not sign, but goes ahead to declare the results,
what will be their probative value?

DR. Afari-Gyan told the court that failure to sign is an irregularity.

He did not go ahead to say what flows from this irregularity.

What is an irregularity?

In the case of BORYS WRZESNEWSKYJ VRS TED OPITZ,

ATTORNEY-GENERAL OF CANADA, MARC MAYRAND (CHIEF
ELECTORAL OFFICER) and ALLAN SPERLING (RETURNING
OFFICER, ETOBICOKE CENTRE)

AND KEITH ARCHER (CHIEF ELECTORAL OFFICER OF BRITISH

COMBIA)

The court by a majority of 4-3 allowed the appeal because the

Appellant sought to have voters of several Canadian citizens
disqualified on account of administrative mistakes notwithstanding
evidence that those citizens were entitled to vote.

In the dissenting opinion, the court said –

“Irregularities should be interpreted to mean failures to

comply with the requirement of the Act, unless the deficiency
is merely technical or trivial. For ‘irregularities’ to have
affected the result of the elections,” they must be of a type that

211
 could affect the result of the election and impact a sufficient
number of votes to have done so……..”

If the presiding officers failed to sign the pink sheets, that

constituted infringement of Article 49 (3) of the constitution and to
me that is fatal. It renders the result declared null and void. In the
Apaloo case, the Gazette Notice issued by the Electoral Commission
in infringement of the Constitutional Instrument was declared null
and void. What then happens to the results declared by the
presiding officers in contravention of Article 49(3) by failure to sign
the pink sheets?

The 2nd respondent told the court, that in spite of the failure to sign,
he will accept the results because the polling Agents did sign. What
is the role of the polling Agent at the polling station?

Under cross-examination by counsel for petitioners, this is what

transpired;

Q. You are aware that the functions of a polling agent are

strictly circumscribed?

A. My Lords, I would say so.

Q. They are not election officials?

A. In the strict sense of term, no.

212
 Q. I would like you to read Rule 19(4) of C.I. 75?

A. WITNESS READS OUT.

Q. So I am suggesting to you that it is not the business

of the polling agents to supervise the work of the
election officials but to observe the conduct of the
poll?

A. My Lords, I agree that the agent is not supposed to

supervise but he plays an active role at the station.

At the pages 25-26 of the record of proceedings for the same day,
Dr. Afari-Gyan made the point about the very limited role of polling
agents abundantly clear.

Q. A polling agent is not involved in the actual

administration of the election?

A. My Lords, you are correct.

Q. He does not count votes after the election?

A. My Lords no.

Q. He counts?
213
A. He does not.

Q. He also does not inspect the ID cards of persons

who are in the queue to vote?

A. My Lords No.

Q. He cannot confront anybody directly at the polling

station?

A. My Lords no and for that matter nobody can

confront anybody directly at the polling station.

Q. If he has any objection to anything happening he

has to inform the presiding officer?

A. My Lord yes.

Q. So the presiding officer is in charge of the polling

station?

A. My Lords absolutely.

214
 Q. He has the final say on any matter?

A. So far as it is connected with the election yes.

Q. In fact the presiding officer can ask the polling

agent to leave the polling station.

A. Yes if the polling agent misconducts himself or

herself.

Q. And who determines who misconducts himself, it is

the presiding officer?

A. Yes it is the presiding officer but misconduct they

are trained to know how mis-conducting oneself in a
polling station is. (sic)

The polling Agent is not an electoral officer and the fact that he has
signed the “pink sheet” cannot legalize that which is otherwise an
illegality.

If even a law properly so passed cannot co-exist with the

constitution if it is inconsistent with any provision of the
constitution, that law to the extent of its inconsistency is null and
void, how can the court give effect to that which is
unconstitutional?

215
Article 49 is an entrenched provision and parliament by itself
cannot even amend it. How can a court under the guise of
interpretation give any other meaning to 49(3) other than what is
stated in the clause. The golden rule of interpretation is that words
must be given their ordinary meaning unless same shall lead to
absurdity. The clause is clear and unambiguous and does not call
for the interpretation jurisdiction of this court. None of the
conditions as laid down in TUFFOUR VRS THE ATTORNEY-
GENERAL [1980] SCLR is present here and I would therefore not
even attempt to embark on that exercise of interpreting the “shall”
or find reasons why the presiding officer might have failed to sign.

The Respondents do not deny the failure of the presiding officers to

sign but contend that that should not be a basis for annulling
lawfully cast votes. Counsel for the 3rd Respondent submitted that
if that is done, it will mean retrospectfully punishing the voters
whose votes will be annulled through no fault of theirs.

I wholly agree with counsel in that regard. In the circumstances,

what is the way out?

THE RIGHT TO VOTE

It is provided by the 1992 constitution, Article 42 that:

“Every citizen of Ghana of eighteen years of age or above and

of sound mind has the right to vote and is entitled to be
registered as a voter for the purposes of public elections and
referenda.”
216
The right to vote is an inalienable right guaranteed and jealously
guarded by the constitution. The only limitation being age and
unsoundness of mind.

The respondents’ case is that annulling the votes of Ghanaians who

have exercised their franchise in accordance with Article 42 will be
disenfranchising them and thus deny them their right to vote.

The principle is that an election should not be invalidated by reason

of any act or omission by an electoral officer or any other person in
breach of his official duty in connection with the election or ----------
-------------- if it appears to the tribunal having cognizance of the
question that the election was conducted substantially in
accordance with the law as to the election, and that the act or
omission did not affect the result.

In this petition however where the evidence on the “pink sheets” on

their faces indicates that the election was not conducted
substantially in accordance with the law as to the election, and that
the act or omission did affect the result, then the result will be
invalidated.

The citizen’s right to vote has been upheld by this court in

numerous cases and in particular AHUMA OCANSEY and TEHN-
ADDY already referred to.

217
I happened to be part of the decision in AHUMA OCANSEY’s case
and I still stand by my opinion therein expressed.

For this reason, I will not by annulling votes under the three
categories indirectly deny the voters their fundamental and
inalienable right to vote as enshrined in the constitution.

Consequently, where votes have been annulled as a result of

violations, irregularities etc, I will call for a run off of the elections.

VOTING WITHOUT BIOMETRIC VERIFICATION

Under Article 45 of the constitution, the 2nd Respondent is

mandated to conduct public elections. In this wise, the commission
is uniquely empowered to enact regulations to govern the
performance of its functions to ensure the sanctity of the citizens’
franchise and the integrity of the electoral system.

In pursuance of its mandate, the commission enacted Regulation C.

I. 75, regulating the conduct of public elections.

Regulation 18(1) makes it mandatory for every polling station to be

provided with a biometric verification device. The Regulation reads
as follows:

“The returning officer shall provide a presiding officer with

(a) a number of ballot boxes and ballot papers;

(b) a biometric verification equipment; and
218
 (c) any other equipment or materials that the commission
considers necessary”

Regulation 47 (1) of C. I. 75 defines a biometric verification

equipment to mean:

“a device provided at a polling station by the electoral

commission for the purpose of establishing by fingerprint
the identity of the voter.”

By regulation 30 –

“(1) A presiding officer may, before delivering a ballot paper to

a person who is to vote at the election, require the person to
produce (a) a voter identification card, or

(b)any other evidence determined by the commission, in order

to establish by finger print or facial recognition that the person
is the registered voter whose name and voter identification
number and particulars appear in the register.”

(2)The voter shall go through a biometric verification process.”

(emphasis mine)

Under Regulation 34 (1) of the Instrument –

“Where the proceedings at a polling station are interrupted or

obstructed by (a) riot, open violence, storm, flood, or other
natural catastrophe, or (b) the breakdown of an equipment,
the presiding officer shall in consultation with the returning
officer and subject to the approval of the commission, adjourn
the proceedings to the following day.”

219
The Biometric verification process is therefore a mandatory
component of the 2012 presidential election.

On the petitioners’ claim that voters were permitted to vote without

being biometrically verified, the Respondents answer is that the
entries in column C3 on the “pink sheets” were filled in error.

The evidence of the 2nd Respondent is that column C3 was not

required to be filled in at all by the presiding officers. According to
him, that column was created to take care of those voters who had
been registered during the biometric registration but whose
biometric data had been lost as a result of some difficulties
encountered by the 2

220
 without biometric verification occurred in various parts of the
country, contrary to the electoral laws of Ghana. It is the further
contention of the petitioners that, indeed, question C3 was
deliberately put on the pink sheet by the 2nd respondent because in
the December 2012 elections the 2nd respondent’s officers were given
discretion to dispense with biometric verification contrary to the law.
This is borne out by Exhibit G, (The Biometric Verification Device
(BVD) User Manual, 2012 Presidential and Parliamentary Elections)
pages 16 and 20 tendered on 13th June 2013 by Counsel for
Petitioners through the Chairman of the 2nd Respondent, Dr. Afari-
Gyan. Thus, it is the aggregate of information entered in C3 on the
pink sheet that gives the total number of persons who voted without
biometric verification, contrary to the law.”

Based on the above, the Petitioners in Table 11A of volume 2B of their

address have a list of Polling Stations where they allege there was voting
without biometric verification – respondents preferred Data-Set (whatever
this means).

By this table 11A on pages 406-437 of Volume 2B, the Petitioners want this
court, to annul 221,678 votes of the 1st Petitioner, whilst also annulling
526,416 votes of the 1st Respondent.

The 1st Respondent’s response to the claims of the petitioner’s was swift
and vehement. Learned Counsel for the 1st Respondent, Mr. Tony Lithur,
stated in his written address as follows:-

379
 “In the face of consistent absence of any proof of complaint in
prescribed manner at any level of the electoral system of the
irregularity alleged, (and this is the instance of voting without
biometric verification) it is submitted that the entries in C3 could not
by themselves form a sound basis for annulling votes cast by eligible
voters.”

In further support of the above submissions, learned Counsel argued that,

from the evidence of the 2nd Petitioner during cross-examination by the
counsel for the 1st and 3rd Respondents, it came to light that the evidence
on this issue of voting without biometric verification was at best confusing,
based on pink sheets entries. According to learned Counsel, once the 2nd
Petitioner admitted not having received any evidence of voting without
biometric verification at any polling station which recorded 100% of such
voting without verification the allegations must not be accepted.

Learned Counsel therefore referred the Court to bits and pieces of evidence
during the cross-examination of 2nd Petitioner. The evidence on this issue
was based on same entries in Column C1 and C3 of the pink sheets and
according to respondents, this is not logical. These are the bits and pieces
of the evidence of 2nd Petitioner under cross-examination on the issue of
voting without biometric verification.

Q. “I am suggesting to you that nobody in the 2012 election (voted)

whose name and identity has not been checked through the
biometric verification?

380
A. My Lords I was not at those polling stations all we can say is

on the face of the pink sheet this number of people voted

without biometric verification.

Q. Before the election presumably every polling station had biometric

fingerprint verification machine. At least in every polling station?

A. Yes those that worked.

Q. I believe the hullaballoo started when it was discovered that some of

the verification devices were not functioning properly?

A. I think the hullaballoo started when the machine was not functioning

properly and 1st Respondent asked that contrary to the law

people should be allowed to vote without biometric
verification.

From the evidence on record, the confusion on this issue of voting without
biometric verification has been highlighted in the column C3 on the pink
sheets.

According to the 2nd Respondent’s witness, Dr. Afari Gyan, the Presiding
Officers were all under strict instructions not to fill in that column.
However, an examination of the pink sheets has revealed that some of the
Presiding Officers did not carry out this instruction and filled this column C3
even though they did not have the requisite Form 1 C which was to be
used to fill in that column.

381
Eager to find out the method by which this directive to the Presiding
Officers was conveyed, I made an intervention which Dr. Afari Gyan
answered thus:-

“Dotse: “For the purpose of clarity so how were the presiding officers to fill
in that C3 column?

Witness: No, we told them that they should put zero because they wouldn’t
have even the means, yes to fill.

Dotse: Was it communicated to them verbally or you wrote to them with

copies to all the parties?

Witness: Erm, well, I don’t know whether we wrote to them but

we did make it part of the training.”

From the above, it is clear the 2nd Respondents did not recall writing to
their Presiding Officers or just instructing them verbally.

In any case, no further evidence was solicited by any of the parties in this
case, and so we take it that, that part of the evidence that they made
those instructions on not filling column C3 an integral part of the training of
the presiding officers substantially, stands unchallenged and must be
accepted. Reference cross-examination of Dr. Afari Gyan by learned
Counsel for the petitioners on 6th June 2013.

Learned Counsel for the 3rd Respondent, launched a systemic attack on this
phenomenon of voting without biometric verification. Because of the clarity

382
of thought and detailed references to the evidence of Dr. Afari-Gyan as a
basis for the creation of the C3 column, I will quote it in extenso:-

“The witnesses for the Respondents denied that the entries on the
pink sheets in respect of C3 were evidence of voting without
biometric registration. They insisted that many of those entries were
clerical errors. The most decisive testimony in relation to this head of
claim was that given by Dr. Afari-Gyan, the Chairman of 2nd
Respondent in evidence-in-chief. He stated that the column C1 was
not required to be filled in at all by Presiding Officers. According to
him, that column was created to take care of those voters who had
been registered by 2nd Respondent during the biometric registration
exercise that preceded voting, but whose biometric data had,
unfortunately, been lost as a result of some difficulties that 2nd
Respondent had encountered.

As an election administrator, he thought his duty was to give every

such person the chance to cast his ballot. 2nd Respondent therefore
devised this facility to allow such persons to vote without going
through biometric verification. They w ould be required to fill in
Form 1C before voting. W hen the idea w as m ooted to the
political parties, they all rejected it. He therefore gave
instructions that the Form 1C should not be sent to the
polling stations. The C3 colum n w as therefore not supposed
to be filled.

383
 “….C3 was put there in an attempt to take care of those people
who through no fault of theirs would have valid voter ID cards
in their possession but whose names will not appear on the
register and therefore could not vote. But let m e add that
w hen w e discussed this w ith the political parties, som e
of them vehem ently said no, that w e w ill not allow any
persons to be verified other than by the use of
verification m achine. I am just ex plaining w hy the C3
cam e there. The parties said no and w e could
understand that argum ent that this facility is not given
to one person, it is being given to every presiding
officer. So you are given this facility to 26,002 and it is
possible to abuse it. So we do not want it and we agreed that
that facility would not be used. Unfortunately, the forms had
already been printed, these are offshore items, so we could not
take off the C3. And what we said, and we have already said
this in an earlier communication, was that we will tell all the
presiding officers to leave that space blank because they had
already been printed and there was no way that we could take
it off. And that explains the origin of C3 on the pink sheet. It
was a very serious problem.”

This account of the origin of the colum n C3 on the pink sheet

w as not challenged by Counsel for the petitioner’s in cross-
ex am ination.

384
 Figures in the C3 column of the pink sheet, such as the same figure
in C1 being found in C3, also showed the difficulties that occurred
with this column as it was filled in according to how a Presiding
Officer interpreted it. 2nd Petitioner who did not fill in the pink sheets
was in no position to testify about the understanding of the Presiding
Officers which went into filling that part of the pink sheet.“

The explanation of the Electoral Commission Chairman to me makes sense.

I would however have expected that such a decision not to use the C3
column would have been communicated to the Presiding Officers in a
written form. However, as stated supra, that piece of evidence was not
challenged and it has therefore settled the matter.

CONCLUDING REMARKS ON THE BIOMETRIC VERIFICATION

I have already stated that I find Dr. Afari-Gyan’s explanation on the C3

column on the pink sheets which is to this effect “what is the number of
ballots issued to voters verified by the use of Form 1C (but not by the use
of BVD) quite convincing and reasonable under the circumstances.

It must be noted that, during the testimony of Dr. Afari-Gyan, he

attempted to explain how the BVD machine can be used to store data on
all those persons who voted at a particular polling station and explain how
the BVD machine works. An objection was taken by learned counsel for the
petitioners Mr. Addison to this evidence. However, by a majority decision of
7-2, the objection was over ruled.

Proceeding further, Dr. Afari Gyan then explained as follows:-

385
 “We had the machines brought to our headquarters in Accra and
verified the information and downloaded the data and made print out
of the information on the biometric verification machine.”

After this explanation, Dr. Afari Gyan then sought to tender the printout of
this information from the BVD.

However, learned counsel for the petitioners, Mr. Addison objected and
following the discourse that ensued as captured by part of the proceedings
of 3rd June 2013, this is what transpired as per the records.

“Addision: My lords we object to the tendering of this document. This is a

document that can be produced by anybody, there is nothing
on the face of this document which shows that it is an original
that comes from a particular BVD machine. In any event, this
evidence takes the petitioners by surprise. We have stated our
full case, we have filed our affidavit to which we attached a
number of pink sheets pursuant to the order of this court dated
2nd April 2013. The 2nd respondent has had the opportunity to
controvert the issues raised in our pleadings and affidavit.
Nowhere in its response was there any statement that BVD
machines have been recalled from various parts of the country
and that they were going to tender print outs of these
machines to contradict information provided by the petitioners.
My lords, more importantly, these matters were not put to our
witness when he was in the box and therefore they are trying
to conduct a new case behind our back. Again it violates the

386
 order of this court on the 2nd April, they have not attached it to
their affidavit neither is there any indication in their affidavit.
My lord I would like to refer your lordships to the Evidence Act
1975 Section 52(C) and it provides: COUNSEL READS OUT….

Dotse: Mr. Addison, I am not an IT specialist but I stand to be

corrected. Where there is a dispute on the pink sheets and as
we are been told, some data has been captured by the BVD
during the exercise, that is the voting and if as is been sought
to be done, the document is an accurate record of what
transpired during the polls, do we have the expertise to be sure
that the data captured by the machine is correct because in
these matters, that is why I believe Ghana opted for the BVD
and we cannot just throw it off like that, we must make use of
it in times of crisis or in times of dispute like this…

Quashie-Idun: My lord I would first wish to say that there is a distinction

between admissibility of a document and the weight to be
attached to it and much of what my learned friend says the
goes to the weight not the admissibility of the document.
Secondly, there is no surprise, when they were saying that
people were not biometrically verified, what they mean other
than verified by the machine. So there is no surprise, they
know the machine is there and they are saying it was not used.
When we were filing our affidavit we did not know the evidence
that was going to be led by them…

387
By court: By a majority of 7 to 2, Atuguba and Akoto-Bamfo, JJSC
dissenting, the objection is sustained. Document marked as
Exhibit R5.”

As can be seen from part of the proceedings just referred to, an

opportunity to match the data allegedly captured from the BVD with the
allegation that some people voted without biometric verification was lost.
This resulted into the rejection of the document which was subsequently
marked as Rejected 5.

This document R5 supposedly contains a list of persons who were captured

as having been verified by the BVD during voting at the polling station.
Other printouts could have been produced and compared with the number
that voted at the Polling Stations to match this allegation of voting without
biometric verification but since that document was rejected at the instance
of the Petitioners I cannot look at it.

But I can make the necessary inference and deductions. Having lost this
opportunity, I think it is inconceivable to disregard Dr. Afari Gyan’s
explanation especially as the evidence on record has not been challenged.

The 2nd Respondent’s have maintained some consistency in their

explanation of the origins of the C3 column on the pink sheets, reference
paragraph 15 (a) of the 2nd respondents amended answer.

Secondly, the petitioner’s themselves in Exhibit NDC 43, which is the letter
authored by the 3rd Petitioner dated 9th December 2012 and addressed to

388
the Chair of the 2nd respondent emphatically requested for “Audit of
verification machines and recount of Presidential Ballot”.

Even though I have already quoted this letter in extenso for purposes of
emphasis, I would want to refer to the following relevant portions again:- it
states:

“We request that you, as the Returning Officer of the Presidential

Elections; (i) cause an audit of the verification machine to establish
that it tallies with constituency collated signed results”.

The above is ample proof that, the petitioner’s themselves recognise and
admit the use of the verification machine to establish the tallies of the
election results. This is the main reason why I have stated that, it was
wrong first for learned counsel for the petitioner’s to have objected to the
tendering of the print outs from the Biometric machines to verify anomalies
whilst they themselves had requested for it as far back as 9th December
2012.

Perhaps, at that time, because of the contemporaneous nature of the

request and the conclusion of the election being almost at the same time,
they did not think about the problems of tampering with the machines.

However, there are certain things and practices as a nation we ought to

have confidence and trust in its administration, and a typical one is this
biometric verification device. Once we asked for it and it was provided, at
huge cost, we must accept it and learn to rely on it for the verification that
it was meant to provide.

389
The no biometric verification therefore in my estimation fails in its entirety.

As a matter of fact, if one considers the number of pink sheets where the
C3 column was inadvertently filled in, as apposed to those instances where
it was not filled in, the impression is that, the instruction not to fill in the
C3 column was honoured more in the observance than in the breach, I will
therefore give the benefit of the doubt to the 2nd respondent’s and accept
their explanation.

This is because of the presumption of regularity which presumes that the

instructions to the presiding officers was regular on the face of it, no
contrary evidence having been led on the matter see section 37 of
Evidence Act NRCD 323. In circumstances like this, it is critical to consider
the write up on page 16 of Exhibit E. C. 2, tendered on 24/4/2013 which is
a Guide to Election officials, column D on the said page states as follows:-

“Record the number of ballots issued to voters on the polling station

register by checking the number of ticks on the voters register.( for
this biometric register tick against the barcode) Adding the figure
obtained from the ticks in the proxy register should equal the number
of ballots in the ballot box on the assumption that each voter issued
with a ballot paper cast a ballot. The ticks on the Names Reference
List must also equal the ticks on the main voters register”

The above constitute the procedure that Presiding Officers are to follow at
each polling station. If there should be an irregularity on the face of any
pink sheet, which should give a contrary opinion to the effect that there
were some instances where voting without biometric verification was

390
permitted, the first place to verify this will be the polling station documents
referred to in the quotation supra.

Another contention by the 2nd petitioner, despite his sterling performance

in the witness box which I find puzzling is that, all entries made in CI –
wrongly should equal zero or dash.

See for example, table 10B of the petitioners address, volume 2B pages
360-363 where a list of polling stations where CI equals zero or blank. In
this instant, votes of 28,805 for the 1st Petitioner, and 62,576 for the 1st
Respondent are to be annulled.

Having considered this analysis vis-à-vis the evidence of Dr. Afari-Gyan on

why the C3 column was initially created but later abandoned at the
insistence of the political parties, I am left in no doubt that the whole
contention of voting without biometric verification has not been properly
made out. I will therefore for this and other reasons stated elsewhere in
this judgment, reject this voting without biometric verification as not
having been properly made out by the Petitioners. It is accordingly
dismissed.

NO PRESIDING OFFICER SIGNATURE CATEGORY

In order to drum home the constitutional significance of the issue of this
contentious “No Presiding Officer signature on the Pink Sheets” it is
perhaps pertinent to quote verbatim how the provisions are articulated in
the Constitution.

Article 49 provides as follows:

391
It is generally understood that there are three branches of government, to
wit, the Executive, the Legislature and the Judiciary. Of the three, it
is only the Judiciary that is not elected. Whilst both the Executive and the
Legislature are elected and appointed for fixed terms, the Judiciary to a
very large extent, are appointed by the Executive sometimes with the
approval of the Legislature in the case of the Supreme Court Judges, but
once appointed in democratic states, the Judges have security of tenure
and cannot be removed from office unless upon stated and proven
misbehavior.

In most parts of the civilized world, including Ghana, the three arms of
government are separate, distinct and independent, at least on paper. In
practical terms however, even though there are close working relationships
between the Executive and Legislature since their memberships overlap,
that of the Judiciary is expected to be truly independent in order
to ensure strict adherence to the “rule of law”.

It is in this respect that I am of the view that the statement quoted above,
and attributed to John Adams has become a certainty and a road map for
the Ghana Supreme Court to navigate delicately during this case as it does
in other cases.

It cannot be gainsaid that the stability and progress of any nation depend
upon an upright and skillful administration of justice.

Secondly, in the exercise of judicial power, the courts should be seen as

being distinct and independent from both the Ex ecutive and
Legislative organs of state.

234
Thirdly, in the performance of its duties, all the organs of government must
be seen to be independent one of the other, so however that each may
become a check on the other.

Finally, whilst the Judiciary is independent of the Executive and Legislature

and a check on both, the other two should also be a check on the Judiciary
not so however in the performance of its duties.

The above statement clearly epitomises the principles of separation of

powers which is the bedrock of all modern and truly democratic
constitutions of the free world of which Ghana is indeed a proud member.

The task facing the Supreme Court under the 4th Republican Constitution of
1992, is therefore an enormous one which demands a lot of
circumspection, in order to achieve substantial justice such as would
protect the dignity and morals of the society thereby upholding the dignity
and stability of the state.

Since this is an election petition, I have taken inspiration from Alexander

Hamilton’s speech in the New York Assembly, June 21, 1788 when he
stated thus:

“After all, Sir, we must submit to this idea, that the true principle
of a republic is that the people should choose w hom they please
to govern them . Representation is imperfect in proportion as the
current of popular favor is checked. This great source of free
government, popular election, should be perfectly pure, and the most
unbounded liberty allowed.”

235
In also describing the enormity of the task that faces a Judge when such
delicate issues come up for adjudication, another colossus of a giant in the
U.S Judiciary, Benjam in Cardozo, one time Associate Justice of the U. S.
Supreme Court, in his invaluable and ground breaking book “The Nature
of The Judicial P rocess”, described in simple and understandable
language, the conscious and unconscious processes by which a Judge
decides a case. This is the task that now faces me.

This is what is contained in page 10 of Benjamin Cardozo’s book referred

to supra:

“W hat is it that I do w hen I decide a case? To w hat sources

of inform ation do I appeal for guidance? I n w hat proportions
do I perm it them to contribute to the result? I n w hat
proportions ought they to contribute? I f a precedent is
applicable, w hen do I refuse to follow it? I f no precedent is
applicable, how do I reach the rule that w ill m ake a
precedent for the future? I f I am seeking logical consistency,
the sym m etry of the legal structure, how far shall I seek
it? At w hat point shall the quest be halted by som e
discrepant custom , by som e consideration of the social
w elfare, by m y ow n or the com m on standards of justice and
m orals? I nto that strange com pound w hich is brew ed daily
in the caldron of the courts, all these ingredients enter in
varying proportions. I am not concerned to inquire w hether

236
 judges ought to be allow ed to brew such a com pound at all.I
take judge-m ade law as one of the ex isting realities of life.”

In this judgment, as far as my ability and capacity can carry me, I shall
endeavour to follow such a practice or method especially as there is no
known local precedent in this aspect of the law that we are requested to
enforce and or interprete.

In this case, I am called upon to make very serious decisions on the

validity of the presidential elections held on 7th and 8th December 2012.
The sources of information that I should be looking at, are the
Constitution 1992, The P residential Elections, Act 1992, (P NDCL
285) (Sections 4 and 5) . P ublic Elections (R egistration of Voters)
Regulations 2012 C. I . 72, P ublic Elections Regulations, 2012 C.I .
75, Suprem e Court Am endm ent Rules, 2012 C. I 74 and the 2nd
Edition of the Manual on Election Adjudication in Ghana prepared by the
Judicial Service, July 2012, decided cases, Constitutional Instruments,
pleadings and relevant exhibits used by the parties in this case, decided
cases from other common law jurisdictions and my own understanding of
the issues and law applicable based on the evidence adduced in Court in
order to ensure justice and equilibrium in our body politics.

WHAT THEN ARE THE FACTS OF THIS CASE?

In pursuit of its democratic practice, under the 4th Republic Constitution,

1992, Ghana again went to the polls on the 7th and 8th December 2012 to
elect a President and also members of Parliament for the 275
constituencies that had been demarcated by the 2nd Respondents, the

237
Electoral Commission. It must be noted that, general elections had been
conducted in Ghana for the same dual purposes in 1992, 1996, 2000, 2004
and 2008. The 2012 election was thus the 6th under the Constitution 1992
that the 2nd Respondents had conducted.

The 2012 Presidential Election was contested by the following candidates:

1. John Dramani Mahama - representing National Democratic

Congress (NDC)

2. Dr. Henry Herbert Lartey- representing Ghana Consolidated

Peoples Party (GPCC)

3. Nana Addo Dankwa - representing the New Patriotic Party

Akufo-Addo (NPP)

4. Dr. Papa Kwesi Nduom - representing Peoples Popular Party

(PPP)

5. Akwasi Addai Odike - representing United Front Party (UFP)

6. Hassan Ayariga - representing People’s National

Convention (PNC)

7. Dr. Michael Abu - representing Convention People’s Party

Sakara Forster (CPP)

8. Jacob Osei Yeboah - Independent Candidate

238
It is to be noted that, the 2nd Respondents herein, the Electoral
Commission is the body charged under article 45 (c) of the Constitution
1992 inter alia, to conduct and supervise all public elections and referenda.

In consequence of the above, the 2nd Respondent therein, through its

Chairman, Dr. Kwadwo Afari-Gyan on the 11th December 2012 issued and
published the Declaration of P resident – Elect I nstrum ent, 2012 (C.
I . 80) in which the 1st Respondent, John Dramani Mahama who had
already been declared on the 9th of December 2012 as having won the
2012 Presidential Election was declared therein as having been validly
elected as President of the Republic of Ghana.The total votes declared with
their corresponding percentages as having been cast in favour of the
contesting presidential candidates referred to supra are as follows:-

i. John Dramani Mahama - 5 ,574,761 50.70%

ii. Dr. Henry Herbert Lartey - 38,223 0.35%
iii. Nana Addo Dankwa Akufo Addo - 5,248,89 47.74%
iv. Dr. Papa Kwesi Nduom - 64,362 0.59%
v. Akwasi Addai Odike - 8,877 0.08%
vi. Hassan Ayariga - 24,617 0.22%
vii. Dr. Michael Abu Sakara-Forster - 20,32 0.18%
viii. Jacob Osei Yeboah - 15,201 0.14%

Total Votes - 10,995,262 100%

Feeling aggrieved with the declaration by the 2nd Respondent of the 1st
Respondent, John Dramani Mahama, the Presidential Candidate of the
National Democratic Congress, as the winner of the 2012 Presidential

239
Elections, the Petitioners herein, namely Nana Addo Dankwa Akufo-Addo,
the Presidential candidate of the New Patriotic Party, Dr. Mahamudu
Bawumia, the running mate to the Presidential Candidate of the N.P.P, and
Jake Otanka Obetsebi Lamptey, National Chairman of the New Patriotic
Party commenced a petition as 1st, 2nd and 3rd Petitioners respectively on
the 28th of December 2012 pursuant to article 64 of the Constitution 1992,
section 5 of the Presidential Election Act, 1992 (PNDCL 285), and Rules 68
and 68A of the Supreme Court (Amendment) Rules 2012, C. I. 74
challenging the validity of the election of the 1st Respondent as the
President of the Republic of Ghana and sought the reliefs stated in the
petition.

The original petition filed by the Petitioners on 28/12/2012, was by order of

this Court dated 7th February, 2013 amended in consequence of which the
Petitioners filed their 2nd Amended Petition dated 8th February 2013.

In order to set the records straight, I wish to point out that, the Petitioners
were ordered by this court to amend their original petition for the first time
when the 3rd Respondents herein, the National Democratic Congress
were by a majority decision of 6-3 joined to the Petition as the 3rd
Respondents.

That explains the 1st and 2nd amended petitions respectively.

240
RELIEFS CLAIMED BY THE PETITIONERS

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.

GROUNDS FOR SEEKING RELIEFS

Out of abundance of caution, I will set out in extenso the particulars of the
Petitioners as set out in their 2nd amended petition from paragraphs 20,
ground I through to ground 2A, Ground 3 and all their particulars to
paragraphs 21-27 inclusive.

GROUNDS FOR CHALLENGING THE VALIDITY OF THE DECEMBER

2012 ELECTION

Ground 1

“There were diverse and flagrant violations of the statutory provisions

and regulations governing the conduct of the December 2012 presidential

241
 election which substantially and materially affected the results of the
election as declared by the 2nd Respondent on 9th December 2012.

Particulars
a. That the 2nd Respondent permitted voting to take place in many
polling stations across the country without prior biometric
verification by the presiding officers of 2nd Respondent or
their assistants, contrary to Regulation 30 (2) of C. I. 75.

b. That the voting in polling stations where voting took place without
prior biometric verification were unlawfully taken into account in the
declaration of results by 2nd Respondent in the presidential election
held on 7th and 8th December 2012.

c. That by 2nd Respondent’s established procedure, 2nd Respondent

conducted the December 2012 presidential and parliamentary
elections at polling stations each of which was assigned a unique
code to avoid confusing one polling station with another and
to provide a mechanism for preventing possible electoral
malpractices and irregularities.

d. That there were, however, widespread instances where

different results were strangely recorded on the declaration
forms (otherw ise know n as the ‘pink sheet’ or ‘blue sheet’) in
respect of polling stations bearing the same polling stations
codes.

242
 of proof but, having regard to the consequences of declaring
an election void, there m ust be a preponderance of evidence
supporting any conclusion that the rule w as affected.”

This position is in accordance with persuasive authority. In the Orpitz

case , (supra), it was held on page 42 (paragraph 66) as follows:

“By contrast, if a vote cast by an entitled voter w ere to be

rejected in a contested election application because of an
irregularity, the voter w ould be irreparably disenfranchised.
This is especially undesirable w hen the irregularity is outside
of the voter’s control, and is caused solely by the error of an
election official.”

Learned Counsel for the 3rd Respondent, Mr. Tsatsu-Tsikata in his written
address also made similar submissions in terms as referred to supra. The
only difference is that he combined the role of the party agents alongside
those of the presiding officers and the effect of other subsidiary legislations
on the “no presiding officer signatures” phenomenon, in C. I. 75.

In effect, the thrust of Mr. Tsikata’s submissions on this point is briefly

that, once the party agents of the Petitioners have signed the pink sheets
in accordance with the constitutional and statutory requirements, they
must be deemed to have accepted the results as declared to be correct
and consistent with all requisite laws and regulations.

On this point, Mr. Tsikata specifically submitted as follows:-

401
 “I t is w orth em phasizing that w hat is certified by the
candidate’s agents includes certifying that the poll w as
conducted in accordance w ith the law s and regulations
governing the conduct of the elections”. I n alm ost all of the
ex hibits filed as attachm ents to the affidavit of the 2 nd
P etitioner, the agents of the 1 st P etitioner w ere present and
their signatures on the pink sheets on w hich P etitioners rely
constitute adm issions of regularity of the election results. On
the face of their ow n docum entary evidence, therefore, the
P etitioners are confronted starkly by these adm issions m ade
on their behalf at the polling stations. There is also evidence
that these adm issions w ere repeated at the constituency
collation centres w here these results w ere entered on the
collation sheets and signed off again by representatives of
candidates.”

Concluding his submissions on this matter, learned Counsel invited the

Court to reject the invitation to the Court to annul votes of citizens of
Ghana who exercised their constitutional right to vote in the 2012
Presidential elections by relying on pink sheets which he considered
unreliable.

On his part, learned Counsel for the 2nd Respondent, Mr. James Quahsie-
Idun, the main respondent i.e. Electoral Commission, whose conduct
formed the basis of the violations had a very brief comment to make to the
following effect:-

402
 “I n response to the Further and Better P articulars subm itted
by the P etitioners on this subject, and in Ex hibit P, tendered
by the Chairm an of the 2 nd Respondent on 8 th July 2013, the
2 nd Respondent m aintained that out of the 905 pink sheets
that w ere not signed by the P residing Officer, 99% w ere
signed by the Polling Agents of the P etitioners. Dr. Afari-
Gyan adm itted the obligation of the presiding officers to sign
the declaration of results but stated that w here he om itted
to sign but the P olling Agents signed, the 2 nd respondent
considered it acceptable for the purposes of the declaration
of the results. I n this contex t, reference is m ade to
paragraph 19 above to em phasise the fact that votes at each
P olling Station w ere counted and declared in public. W e
respectfully urge your Lordship to conclude that on the
evidence presented, there is no basis to annul the votes of
any P olling Station on the basis of the absence of the
signature of a P residing Officer. The P etitioners have not
show n how that affected the outcom e of the elections.”

The above is the entire submission of the 2nd Respondent on the subject.
What is not in dispute is that, indeed, some of the Presiding Officers who
are agents of the 2nd Respondent at the polling stations did not sign the
pink sheets.

Secondly, there is evidence on record from the 2nd Respondent that, when
some of the Returning Officers detected the phenomenon of the non
signing by the Presiding Officers at the collation centres, they as it were
403
called the erring Officers to order and requested them to sign. It should
however be noted that, at that stage, all the party agents must have left
with their unsigned copies of the pink sheets by those Presiding Officers.

Thirdly, it must be noted that, any results declaration form that is

not signed by the Presiding Officer is in breach of article 49 (3) of
the Constitution 1992.

The issue that begs for an answer is whether the failure of the Presiding
Officers to sign the results declaration form (pink sheets) being a
constitutional requirement was a violation, omission, malpractice or
irregularity of the Presidential election held on 7th and 8th December 2012
and whether these affected the outcome of the results of the
elections.

What is the purpose of the provisions in article 49 of the Constitution being

inserted therein instead of leaving it for the Electoral Commission to make
rules and regulations as provided for in article 51, 63 (2) and 65 of the
Constitution 1992?

The draft proposals and report of the 1992 Constitution do not provide any
answer.

It is however safe to surmise that it might be due to our turbulent political

history in the past especially where there has been allegations of ballot
stealing and stuffing and other electoral malpractices prevalent in the 1st
Republic and thereafter.

404
It is therefore safe to conclude that it is an attempt to entrench that part of
our constitutional democracy by protecting the integrity of the ballot from
the very foundations of the law, that is the Constitution.

Indeed, if one considers, the provisions of article 49 (1) which guarantees

that in all public elections in Ghana, voting shall be by secret ballot, the
above deduction of protecting the integrity of the polls cannot be gainsaid.

For example, if there are allegations that during an election, at a particular

polling station, the casting of the ballot was not secret, that will definitely
be an infringement of the Constitution. Even though the consequences of a
breach of that provision has not been provided, a Court of law such as this
Supreme Court, vested with powers under article 2 (1) and (2) of the
Constitution 1992 to enforce and or interprete all or any of the provisions
of the Constitution as the Supreme law of Ghana as has been provided in
article 1 (2) of the Constitution 1992 cannot sit idly and do nothing.

Indeed, there are other provisions in the Constitution which makes general
provisions about the doing or performance of an event or conduct, without
necessarily providing the mechanisms for enforcement and or provide
sanctions for breach of those provisions.

For example, article 144 (7) provides that, the office of a Justice of the
Superior Court shall not be abolished while there is a substantive holder in
office.

405
In that respect therefore, even if Parliament should enact a law to abolish
any of the levels of the Superior Courts, whilst there is a holder of that
office, such a conduct will be declared unconstitutional if an action is
commenced to that effect. This is irrespective of whether the holders of the
office acquiesced in it or not.

It is in this respect necessary to regard the Constitution 1992 as a

sacrosanct document capable of biting to enable it have sanctity and
honour.

Besides, it must also be assumed rightly that the Constitution did not want
to leave these provisions contained in article 49 to the whims and caprices
of any institution or body of persons to meddle and toy with that is why
such detailed provisions on procedure at voting during public elections
have been made. If these provisions in article 49 are compared with the
provisions in article 63 and 65 of the Constitution 1992, the difference in
approach is clear and without doubt. Being an entrenched provision, article
49 cannot even be amended by a party with an overwhelming majority in
Parliament, unless by a referendum.

In article 63 (2) (a) and (b) the Electoral Commission has been granted
enormous powers to make by constitutional instrument regulations to
prescribe the conduct of Presidential elections including the date of the
election inter alia.

Article 65 on the other hand prescribes that the Electoral Commission shall
by constitutional instrument make regulations for the conduct of the
presidential elections generally as stated in article 63.

406
In this respect therefore, it is quite clear that the provisions in article 49
are so precise and mandatory that it requires no other meaning other than
what has been attributed therein. That is why this particular provision is
one of the few entrenched provisions.

It has been forcefully argued by all the Respondents that because the Party
agents have signed the pink sheets, and the results declared after they had
been sorted and counted in public, the complaint of the petitioners is not
well founded and must be dismissed.

Reference has already been made to the locus classicus case of Tufuor v
Attorney General [1980] GLR 637 and I think I need to refer to it here
again. See also the case of J. H. Mensah v Attorney General [1996-
97] SCGLR 320.

Sowah J.A, (as he then was) made a notable pronouncement when he

spoke on behalf of the Court of Appeal, sitting as the Supreme Court in the
Tufuor v A.G. case as follows:-

“...The decision of M r. Justice Apaloo to appear before

P arliam ent cannot m ake any difference to the interpretation
of the relevant article under consideration unless that
decision is in accordance w ith the postulates of the
Constitution. I t is indeed the propriety of the decision w hich
is under challenge. This court does not think that any act or
conduct w hich is contrary to the ex press or im plied
407
 provisions of the Constitution can be validated by equitable
doctrines of estoppel. No person can m ake law ful w hat the
Constitution says is unlaw ful. No person can m ake unlaw ful
w hat the Constitution says is law ful. The conduct m ust
conform to due process of law as laid dow n in the
fundam ental law of the land or it is unlaw ful and invalid...”
The above statement is binding on this court and I find no cogent reason
to depart from it. Besides, the Court in the Tufuor v A.G. case also
justified its statement with the following explanation which is hereby
adopted as my own words.

“Neither the Chief Justice nor any other person in authority

can clothe him self w ith conduct w hich the Constitution has
not m andated. To illustrate this point, if the Judicial Council
should w rite a letter of dism issal to a Judge of the Superior
Court of judicature and that Judge either through
m isinterpretation of the Constitution or indifference signifies
acceptance of his dism issal, can it be said that he cannot
subsequently resile from his ow n acceptance or that having
accepted his dism issal, he is stopped by conduct or election
from challenging the validity of the dism issal? This Court
certainly thinks not. The question w hether an act is
repugnant to the Constitution can only be determ ined by the
Suprem e Court. I t is that Court w hich can pronounce on the
law .”

408
And since it is to this Supreme Court that the Petitioners have come to for
the interpretation and enforcement of the breach of this article 49 (3) of
the Constitution 1992, I hold that notwithstanding the conduct of the
Petitioner’s agents in signing the pink sheets that act, cannot clothe the
unconstitutional conduct of presiding officers in not signing the pink sheets
with constitutionality.

Quite recently, the Supreme Court in two landmark decisions upheld the
supremacy of the Constitution in the hierarchy of legal norms and laws in
the legal system and stated that these principles have to be preserved and
jealously guarded.

See the unreported cases of M artin Am idu v The Attorney-General

and 2 others (a.k.a The Woyome case) S.C. No. J1/15/2012 dated 14th
June 2013 and M artin Am idu v Attorney-General and 2 others , (a.k.a
Isofoton case) S.C J1/23/2013 dated 21st July 2013.

ROLE OF PARTY AGENTS

The Respondents have in their combined responses urged this Court to

consider the position of political Party Agents endorsement of the pink
sheets and purposively interprete that part of the constitution to give
validity to the non-signing of same by the Presiding Officers.

STATEMENT OF POLL FOR THE OFFICE OF PRESIDENT OF GHANA

– FORM EL 21B AND THE DECLARATION – FORM EL22B –
REFERRED TO AS PINK SHEETS

409
An examination of the uncompleted pink sheet gives a very vivid and
clearer vision of the real intention and effect of the non-signature of a
Presiding Officer on a pink sheet.

1. Column A:- Ballot Information

The indication at the top of the column A, is to the effect that it is to be

filled in at the start of the poll. The two questions stated therein really
become relevant when this is considered in context. These are:

i. What is the number of Ballots issued to this polling station?

ii. What is the range of serial numbers of the ballot papers issued to
the polling station?
The question which any critical mind should ask before proceeding any
further with the examination of the information on the pink sheet, is to ask
who is responsible for the filling in of the questions on the pink sheet.

Undoubtedly, this is to be the sole duty of the Presiding Officer. Indeed

Regulation 17, sub-regulation (2) states the following inter alia, as the
duties of the Presiding Officer:

a. setting up the polling station;

b. taking proper custody of ballot boxes, ballot papers, biometric
verification; equipment and other materials required and used for the
poll;
c. Filling the relevant forms relating to the conduct of the poll;
d. supervising the work of the polling assistants;

410
 e. Attending to voters without identify cards;
f. Attending to proxy voters;
g. Maintaining order at the polling station;
h. Undertaking thorough counting of the votes;
i. Announcing the results of the election at the polling station, and
j. conveying ballot boxes and other election materials to the returning
officer after the poll.

On the other hand, sub-regulation 3 of Regulation 17 states that, a polling

assistant among other duties shall work under the supervision of the
Presiding Officer in charge of the polling station.

On Polling Agents, Regulation 19 sub-regulation (2) states as follows:-

“A candidate for Presidential election may appoint one Polling Agent

in every polling station nationwide.”

Sub-regulation (3) of Regulation 19 of C. I. 75 which spells out the role of

a Polling Agent of a candidate states as follows:-

“An appointment under sub-regulations (1) and (2) is for the

purpose of detecting im personation and m ultiple voting and
certifying that the poll w as conducted in accordance w ith the
law s and regulations governing the conduct of elections”.

411
Sub-regulation (4) of Regulation 19 which is also relevant states as
follows:-
“A Presiding Officer shall give a polling agent the necessary access to
enable the polling agent to observe election proceedings at a
polling station.”

In view of the provisions of Regulation 17 and 19 as referred to

supra concerning the functions and roles of a Presiding Officer
and his assistant vis-à-vis those of the Polling Agents of the
candidates, it is clear that whilst it is the duty of the Presiding
Officers to manage, control and be responsible for all activities
connected with the poll which includes the filling in of the pink
sheets, the candidates agents are merely to OBSERVE the election
proceedings at the polling station and certify at the end of the poll
that it was conducted in accordance with the laws and regulations
governing the election.

From the questions in column A, and the clear provisions of regulation 17

(2) (c) of C.I. 75, it is clear that it is only the presiding officer or in his
absence, his assistant who can fill in and answer those questions.

Column B
This is a continuation of column A, to the effect that it has to be filled in at
the start of the poll by the Presiding Officer. The questions therein stated
are:-

412
 1. What is the number of voters on the polling station register?

2. What is the number of voters on the proxy voters list?

3. What is the total number of voters eligible to vote at this

polling station? B1 plus B2

Column C

This column C to me is a very important and critical part because this is the
ballot accounting section of the pink sheets. It states at the top as follows:-

“(To be filled in at END of the poll before counting commences)”

Questions in this column are as follows:-

1. What is the number of ballots issued to voters on the polling

station register?

2. What is the number of ballots issued to voters on the Proxy Voters

List?

3. What is the number of ballots issued to voters verified by the use of

Form IC (but not by the use of BVD)?

4. What is the total number of spoilt ballots?

413
Jacob Osei Yeboah 15,201 10,045 5,156 0.08
Total 10,995,262 4,670,504 6,324,758 100.0

24. Petitioners say that in some instances, votes earned by the

1st Petitioner were unlawfully reduced whilst, at the same
time, votes of the 1st Respondent were illegally padded with
the sole purpose of procuring the victory of the 1st
Respondent in the 2012 December Presidential Elections.

25. When due account is taken of the statutory violations as well as of

the gross and widespread irregularities and malpractices, and the
necessary deductions effected from the votes wrongfully credited to
1st Respondent by the 2nd Respondent and the nullification as
required by law of the results declared at the polling stations where
these substantive infractions occurred, 1st Respondent did not
obtain the total of more than fifty percent (50%) of the valid
votes cast as required by Article 63 (3) of the Constitution in
order to become President, and accordingly ought not to
have been declared President.

26. Petitioners say that all of the irregularities and electoral malpractices
captured above were nothing but a deliberate, well-calculated
and executed ploy or a contrivance on the part of the 1st and
2nd Respondents with the ultimate object of unlawfully

256
 assisting the 1st Respondent to win the 2012 December
Presidential Elections.

27. The Petitioners say that, in consequences of these statutory

violations and infractions, as well as the irregularities and
malpractices, the results declared by 2nd Respondent in
favour of 1st Respondent were far in excess of the valid votes
cast in his favour, thereby subverting the sovereign will of
the electorate contrary to the preamble of the Constitution,
Article 1 (1) and Articles 42 and 63 (3) of the Constitution,
1992”

RESPONSE BY THE RESPONDENTS

All the Respondents herein filed their amended answers.

1ST RESPONDENT’S AMENDED ANSWER

The substance of the 1st Respondent’s answer is to the effect that the 2nd
Respondent declared the results of the 2012 Presidential Election Results at
a press conference which was widely carried on radio and television on 9th
December 2012 and same was thus published in a gazette notification in
the Declaration of President – Elect Instrument, 2012 (C. I. 80) on 11th
December, 2012.

257
The 1st Respondent further stated in the amended answer that the basis
of the declaration of the results by the 2nd Respondent was the
aggregate of total valid votes cast, which was 10, 995, 262.

Whilst the 1st Respondent generally denied the basis of the Petitioners
claims and contentions in all the grounds urged on this court in paragraphs
20-27 of the amended petition, the 1st Respondent specifically denied all
the grounds of the Petition and put the Petitioners to strict proof thereof.

In order to put matters in proper perspective, I deem it quite appropriate

to refer to in detail and in extenso the specific answers of the 1st
Respondent as contained in paragraphs 16 (a), (c), (i), (ii), (iii) (iv) (e) (f)
(g) (h) (i) (j) and also paragraphs 17 (d) (i) (i or j), 17B, 20, 21, 26, 27 (a)
and (d) as follows:

16. “The 1st Respondent denies paragraph 20 and ground 1 of the 2nd
Amended Petition generally and puts petitioners to strict proof of the
statements and allegation contained therein.

a. 1st Respondent does not admit paragraph 20 grounds 1 (a), and 1 (b)
of the petition and puts petitioners to strict proof of the averments
contained therein.

c. The first Respondent shall contend further, or in the alternative, as

follows:

258
i. Fingerprint verification is not the only means of
verification permissible under the law, in terms of Article
42 of the 1992 Constitution, failure or the inability (if at
all) of eligible voters to undergo fingerprint verification as
a result of the breakdown of equipment and/or for any
other reason not attributable to them cannot constitute
the basis for denying such voters of their constitutional
rights to vote, and have their votes counted.

ii. That any electoral laws and/or directives, the effect of which
would be to invalidate the votes of such persons, who had
properly presented themselves at polling stations to vote, and
had been duly identified as registered voters in the
biometric voters register, would be inconsistent with
Article 42 of the Constitution, and therefore,
unconstitutional;

iii. That 1st Petitioner had, or ought to have had polling and/or
counting agents at the various polling stations who were part of
the prescribed voter identification processes prior to voting.
The said polling and/or counting agents having participated in
that process and, having, after public and transparent
counting and/or collation, certified the results of the polling
stations and/or Constituencies, by signing without protest, the
polling returns, had thereby represented to the whole world
259
 that the declared results accurately reflected the outcome of
the election in the respective polling stations and/or
Constituencies.

iv. That the 1st Respondent shall contend therefore that

the allegations contained in the said paragraph 20
grounds 1 (a) and 1 (b), even if true (which the 1st
Respondent denies) did not affect the declared
results of the elections.

e. In further response to paragraph 20 ground 1 (d) of the

petition, the 1st Respondent says that all authentic “pink
sheets’ reflectgenuine results of lawfully supervised voting at
various pollingstations.

f. 1st Respondent states further that, assuming without

admitting, that some polling stations had the same code

numbers, that fact alone would not invalidate the

declared results of supervised elections in those polling

stations and the votes validly cast.

g. The 1st Respondent therefore denies paragraph 20 ground 1 (e)

of the 2nd Amended Petition, and, in further denial, repeats

Paragraphs 16 (e) and 16 (f) herein. The 1st Respondent shall

also contend that the allegations contained in the said

260
 paragraph 20 ground 1 (d), even if true (which the 1st

Respondent denies), did not affect the declared results of

the elections.

h. The 1st Respondent does not admit Paragraph 20 ground 1 (f)

of the 2nd amended petition and puts Petitioners to strict proof
of theallegations contained therein. The 1st Respondent
states that, anyhow, to the knowledge of the
Petitioners and their polling and/or counting agents the
results that were declared at the various polling
stations were the product of painstaking, public and
transparent sorting and counting and/or collation (and
sometimes re-counting) at the various polling stations
and collation centres with the full participation of 1st
Petitioner’s accredited polling and/or counting
agents, who did not protest at the declared results at
the time of their declaration.

i. In further response to paragraph 20 ground 1 (f) of the 2nd

amended petition, the 1st respondent says that assuming,

without admitting, that 2nd Respondents officers omitted to sign
declaration forms, such omission cannot operate to
invalidate the lawful exercise by eligible voters of their
fundamental rights under Article 42 to vote in
supervised elections in the affected areas. The 1st

261
 Respondent also repeats paragraph 16 (c) (iii) herein in
further response.

j. The 1st Respondent shall also contend that the allegations

contained in the said paragraph 20 ground 1 (f), even if true

(which the 1st Respondent denies), did not affect the results of
the elections.

17. (d) The 1st Respondent states further that, assuming, without

admitting, that in some instances, different polling stations had

the same serial numbers, that fact alone would not invalidate
the declared results of supervised elections in those polling
stations. The 1st Respondent shall also contend that the
allegations contained in the said paragraph 20 ground 2 1 (b),
even if true, did not affect the declared results of the elections.

i. Further or in the alternatives, the 1st Respondent states that

the results of the election in each polling station were declared
openly and publicly, and the votes credited to each candidate
arising from the declared results are matters of public
knowledge and verifiable. Therefore, granted that there
may have been conflict between the words and figures
stated on the “pink sheets”, that did not affect the
declared results of the elections.

262
j. The 1st Respondent states in further response to Paragraph 20
Ground (1) (f) that the results of the election were publicly
declared at the various polling stations and Constituencies and
are matters of public knowledge. To the knowledge of the
Petitioners and their polling and/or counting agents, the results
that were declared were the product of painstaking, public and
transparent sorting and counting and/or collation (and
sometimes recounting) at the various polling stations and
collation centres with the full participation of 1st Petitioner’s
accredited polling and/or counting agents, who did not protest
at the declared results at the time of their declaration.

17B. The 1st Respondent states in further response to the said

paragraph that the results declared in all polling stations
throughout the country (as reflected on all genuine “pink
sheets”), were the product of properly supervised elections in
which the Petitioners and the NPP, their political party, together
with their polling and/or counting agents participated; and
that in all cases, voting was done on the basis of a
biometric voters register, made available to all the
political parties prior to the elections.

20. The 1st Respondent denies paragraph 22 of the 2nd Amended

Petition and puts Petitioners to strict proof of the statements
contained therein. The 1st Respondent states in further

263
 response that the invitation by the Petitioners to annul
votes from 11,916 polling stations constitute an
attempt toundermine the fundamental rights of
Ghanaians under Article 42 of the 1992 Constitution,
and should be rejected by the Honourable Court as
completely lacking any basis in law and/or fact.

21. The 1st Respondent denies paragraph 23 of the 2nd amended

petition and puts petitioners to strict proof of the statements
contained therein. The 1st Respondent states in further
response to the said paragraph that the statements and
calculations contained therein completely lack any basis in law
and/or fact and should be wholly rejected by the Honourable
Court.

26. The 1st Respondent denies paragraph 27 of the Petition and

puts Petitioners to strict proof of the allegations and statements
contained therein. The 1st Respondent states in further
response that it is rather the Petitioners who, by the
present Petition, are seeking to subvert the
Constitution, undermines the integrity of 2nd
Respondent and the whole electoral system and the
sovereign will of the people of Ghana by demanding
from the Honourable Court an order annulling the

264
 results of the exercise of their fundamental rights under
the Constitution.

27. In general response to the Petition, the 1st Respondent states

as follows:

a. That it was acknowledged by all observers, domestic as well

as international, that the conduct of the elections had been
generally free and fair as well as transparent.

b. That the whole Petition lacks merit and should be dismissed.

In essence the 1st Respondent stated quite emphatically that the basis of
the Petitioners claims is the product of double counting in numerous
instances.

2ND RESPONDENTS 2ND AMENDED ANSWER

The 2nd Respondent explained the basis of the Petitioners claims of

differences in the electoral register given to their party the NPP, vis-à-vis
the total registered voters on the electoral calendar in copious terms as
spelt out in their paragraph 8 of their amended answer.

8. In answer to paragraph 14 of the 2nd amended petition, the 2nd

265
being qualified to vote, or properly identified as is the case of the no
biometric identification, no vote (N.B.N.V) phenomenon.

In view of all the above discussions, I will uphold the petitioner’s claims
under the category of Presiding officers not signing the pink sheets.

DUPLICATE SERIAL NUMBERS ON PINK SHEETS

Learned counsel for the Petitioners, in his address on the above head of
claim submitted that, one of the methods by which the 2nd Respondent’s
has sought to guarantee the security of the election materials by avoiding
the substitution of election materials by unscrupulous persons who might
be determined to compromise the electoral process was to secure the
integrity of the electoral process as follows:

“One of the m eans by w hich the 2 nd respondent has over the

years sought to do this, alongside other m easures, has been
to pre-em boss electoral m aterials w ith unique serial
num bers. This is to ensure that specific electoral m aterials,
so far as possible, are used only once at every polling station
and also to detect the introduction of forged m aterials into
the electoral process. Thus, for ex am ple, the ballot papers
have serial num bers em bossed on them to ensure that each
ballot paper is unique in its identity. The series equally
ensures that ballot papers are allocated to constituencies
and polling stations in accordance w ith serial num bers
know n to the 2 nd respondent. I n the sam e w ay, in order to
424
 avoid the threat of replacem ent of official ballot box es w ith
unofficial ballot box es, the ballot box es officially used by the
2 nd respondent have em bossed on them serial num bers. Even
the tam per proof envelops, into w hich presiding officers at
polling stations put all election m aterials post announcem ent
of the results at the poll, have serial num bers in order to
enable detection of any attem pt to replace an authentic
tam per proof envelope w ith a counterfeit one. I t should be
noted that, in each of these exam ples the serial num bers
com e already em bossed on the article from the
m anufacturers/ printers. It w ould, accordingly, be
astonishing, if not self defeating, w here the prim ary record
of the election, w hich are the pink sheets, on w hich results
are declared, has no serial num ber as a security feature to
prevent substitution or forgery of such critical electoral
m aterials.”

The above statement had been re-emphasised supra in paragraph 56 of

the affidavit sworn to by the 2nd Petitioner in which reference has been
made by the Petitioner’s to 6,823 polling stations where they claimed
exclusive instances of the malpractice of same serial numbers on pink
sheets with different results took place.

It must be noted that, this category of malpractice is by far the largest

category and it was therefore not surprising that the petitioners devoted
some valuable and quality time to this phenomenon.

425
What then is the evidence in support of this? Dr. Afari-Gyan who testified
for and on behalf of the 2nd respondent admitted in his testimony the use
of some pink sheets with duplicate serial numbers. Admittedly, the
evidence given by the petitioners in their MB P – series of exhibit supports
the use of pink sheets with duplicate serial numbers.

What is the meaning of this? In effect, what this means is that, a pink
sheet, which has a number embossed on it from the printing stage
0002895 for Ghartey Hall Block “B” U.E.W polling station in the Effutu
Constituency in the Central Region will have the same corresponding serial
number on another pink sheet for another polling station in a constituency
either within the same region or another region. The evidence however
showed that this phenomenon of same serial numbers was duplicated in
different regions, not same region and constituency.

In effect, whilst the number on the pink sheets for these two polling
stations are the same, the polling station name and code are different.

However, according to the petitioners, there is an assumption that, the

numbers on the pink sheets are generated serially and so ought to be
unique to a particular polling station.

In circumstances like the above scenario that I have given, the results
attributable to each polling station as per the pink sheets are different, with
different presiding officers and party agents.

However, the Petitioners contend that as an electoral material, it must

have a unique security feature which is the number embossed on it from

426
the printing press, and once this number has been generated, it is unique
and applicable to only one polling station. They therefore contend that the
widespread use of duplicate serial numbers of pink sheets is a malpractice
for which reason results of all the polling stations in which this
phenomenon was manifested must be annulled.

In order to understand the basis of this claim, it is perhaps useful at this

stage to quote the words of Dr. Afari Gyan when he testified on 10th June
2013 as follows:-

Q. “Dr. Afari Gyan, we will go to the duplicate serial number, the alleged

duplication of serial numbers. You heard the evidence of Dr.

Bawumia the duplication of serial numbers should result in an
annulment of the votes on all polling stations where the same serial
number exists for two polling stations on the pink sheet.

A. My Lords, I strongly disagree with that.

Q. Can you tell us why?

A. Well, in the first place the serial numbers that you find on the pink

sheets are not even generated by the Electoral Commission. They are
generated by the firm or company that printed the pink sheets. Also
unlike in the case of ballot papers, where the law requires that we
print numbers, there should be a number on every ballot paper, I
have seen no reference in the Constitution or a Stature or an
I nstrum ent to a serial num ber of the pink sheet. The serial
num ber is im portant only to the ex tent that it allow s us to
427
 keep count of the num ber of pink sheets produced. The pink
sheets are distributed randomly and the serial number printed on the
pink sheet. It has absolutely no relevance to the compilation and
declaration results. We identify our polling stations by their unique
code and by their names and in fact throughout this trial so far I
have never heard anybody identify a polling station. If two polling
stations have the same serial number that will in no way affect

Q. Do you mean two pink sheets. Two pink sheets with the same

number for different polling stations, it will not have any effect
whatsoever on the validity of votes cast. Why?

A. Each of the two polling stations will have a different code and a

different name. There will be two different presiding officers and two
different sets of officials, there will be two different sets of
candidate’s agents and there will be two different results entirely. So
I see no problem , and w hen the results are taken from the
polling station to the collations center, they are dealt w ith on
the basis of polling stations codes and not serial num bers. So
I do not see the basis for the allegations surrounding the serial
numbers. I see no basis at all.”

All the respondents have denied the allegations of the petitioners on the
duplicate serial numbers with such vehemence that, the issue calls for
thorough analysis and understanding. For example, learned counsel for the
2nd respondent, James Quashie-Idun in his very brief but incisive written

428
submission stated on this duplicate serial numbers on pink sheets as
follows:

“Your Lordship, this category can properly be described as

the w eakest link in an already w eak chain”.

On his part, learned counsel for the 3rd Respondent, Tsatsu-Tsikata in his
written statement stated on this malpractice as follows:-

“I ndeed, there is no basis w hatsoever for a num ber printed

on the pink sheet w hich w as not generated by the Electoral
Com m ission and w hich w as not know n to the political parties
as a distinguishing m ark of polling stations, to be used
retroactively to disenfranchise m illions of innocent voters.”

Even though I am not comfortable with the explanations of Dr. Afari-Gyan,

in his evidence on the duplicate serial numbers as has been reproduced
verbatim, the petitioners have to my mind not discharged the burden of
proof that lies upon them in such cases as has been stated supra.

I have previously quoted in extenso, the written statement of learned

counsel for the petitioners Philip Addison on this point, wherein he asserts
strongly that it should be desirable that pink sheets with specific numbers
should be assigned to specific polling stations as is done with codes and
ballot papers.

It would have been quite easy for me to accede to the contention

of the petitioners if they had led evidence to establish that, in the
past elections, or at least the last 2008 presidential elections, all

429
“pink sheets” had serial numbers embossed on them which were
assigned specifically to particular polling stations. In that respect,
there would have been an established practice that, the number
embossed on the “pink sheets” is assigned to a polling station just
as a polling station code is assigned using a regional alphabet
followed by the numbers, i.e. constituency identification number,
and the unique polling station number which all make up the
unique code.

No evidence whatsoever on this matter has been led by the petitioners, to

establish such a practice. In circumstances where the petitioner’s have
failed with any degree of certainty to establish that, it had been the
practice of the Electoral Commission to assign the numbers on the pink
sheets to polling stations making them a unique feature, the case of the
petitioner’s must fail in this respect.

For now, what has been established as the practice in our electoral process
and administration is that, the following are the security checks and
features that are attributable to a polling station and by which it is known.

1. Name – though this may be similar e.g. E.P. Primary School or C.M.B
Shed, Finger of God etc.

2. Unique Polling Station Code – by which the region, constituency

and polling station are clearly identified making it really unique.

430
 3. Ballot papers – the serial numbers on the ballot papers are unique to
a polling station in the sense that, no two polling stations can have
and use the same ballot papers with same serial numbers.

REFORMS
The importance of the Statement of Poll and Declaration of Results forms,
“pink sheets” has informed me to suggest a number of reforms in our
electoral process, including better management of the “serial “ numbers
on these pink sheets.

It really does not make sense for the Electoral Commission Chairman, Dr.
Afari Gyan to state that it is the printers who generate the numbers on the
pink sheets in order for them to keep count of the number of pink sheets
they have printed. This is not only absurd but also exposes the Electoral
Commission as lacking any control mechanism to really check the actual
number of pink sheets delivered to them.

For example, if a printer generates his own numbers from say 0000001 and
goes on to 9,000,000, whilst in actual fact, the physical count is less than
the quantity the Electoral Commission paid for, then the Electoral
Commission would have been short changed.

Dr. Afari Gyan to me, was not convincing on this point at all, just as he was
on many other issues. But for the weakness in the petitioners case on this
issue, I would have dismissed the Electoral Commission’s explanation as
not being reasonable.
431
It is for this and other reasons stated in this judgment that I am of the
view that there are indeed urgent reforms needed in our electoral process
and administration.

In the first place, it does appear to me that there is the need for the I nter
P arty Advisory Com m ittee (I P AC) to consider legislation to legitimise
the use of serialized pink sheets in just the same way as there are unique
polling station codes. Does it not matter that, the pink sheets, which form
the primary documents upon which election results are declared by the
Electoral Commission are not serialized to prevent their multiple use and
abuse as was apparent in some few cases in the December 2012
Presidential elections?

In order to give validity and raise our elections to a higher pedestal, I think
it will not be a bad idea if IPAC and indeed the entire country will consider
proposals aimed at legislation to ensure that, security features are
enhanced on the pink sheets, to make them identifiable to a particular
region, constituency and polling station just as it is with the polling station
codes.
Even though the above suggestion is likely to be a strain and an
added burden on the Electoral Commission, it is better to put such
a stringent requirement on them, than to live with the type of
mess that was created by the lack of control in the printing,
marking, distribution and use of the pink sheets.

432
Secondly, since the Electoral Commission Chair, who is the returning
officer for the presidential elections was not present at the polling stations
and could in any case not be present thereby lending credence to the 2nd
petitioners oft quoted statement of “You and I were not there” a lot of
caution and circumspection ought to be exercised in anything that has to
do with reliance on entries on the pink sheets.

This is because, if the pink sheets for now remain the only authentic,
valuable and credible document upon which the results are declared, then
everything has to be done to ensure their sanctity, credibility and
legitimacy. Situations, such as those recounted by Dr. Afari-Gyan about
how pink sheets for the December 2012 elections were ordered, printed
and distributed are so bizarre that it could have been a recipe for disaster.
Urgent steps should therefore be taken to reform the electoral landscape
promptly to ensure a clean, fair and a level playing ground.

I am making these suggestions against the background of the explanation

given by Dr. Afari Gyan as the basis for the printing of two (2) sets of pink
sheets. Even though the reasons are not credible and lack candour, the
claims of the petitioners about the widespread use of the duplicate serial
numbers category to perpetuate most of the malpractices and violations
have not been well made out.

433
For instance, if it is because of the late settlement of the issue of the
actual number of contesting presidential candidates that led to the printing
of the two sets of pink sheets thereby accounting for the duplications, then
only one set could have been used, since the other set of candidates never
had the green light. Besides, the names of the candidates on the first set
of printed pink sheets, is the same as the second set. This therefore has
exposed the Electoral Commission as not being candid in their explanation.

It is possible that something sinister could have been the basis

behind the printing of the two sets of pink sheets. But since a
court of law such as this Supreme Court does not deal with
speculation and conjecture in a serious and volatile matter as
disputed presidential election results, it is better to err on the side
of caution than to yield to assertions which have not passed the
litmus test of proof on the balance of probabilities as has been
discussed elsewhere.

My concluding remarks on this matter of duplicate serial numbers

on the pink sheets is that, once the petitioners have failed to
prove the existence of an established practice in the use of
assigned specific serial number on pink sheets to poling stations
in past presidential elections and their further inability to also
prove that these resulted into the massive malpractices they
alleged in this category save for the isolated instances, mentioned

434
SETTLING OF MEMORANDUM OF ISSUES AND PRACTICE
DIRECTIONS ISSUED BY THE COURT DATED 2ND APRIL 2013

Following the inability of counsel for the parties in the case to file and
agree upon a memorandum of issues as directed by the Court, the Court
on the 2nd day of April, 2013 settled the memorandum of issues based on
the pleadings filed before the Court. These are:

1. Whether or not there were violations, omissions,

malpractices and irregularities of the Presidential Election
held on the 7th and 8th December, 2012

2. Whether or not the said violations, omissions, malpractices

and irregularities, if any affected the outcome of the results
of the elections.

DIRECTIONS ON MODE OF TRIAL

The Supreme Court on the same 2nd day of April, 2012 issued the following
directions on the mode of trial aimed at expediting the hearing of the
petition and to reduce the time spent by witnesses if any that will be called
by the parties to testify in the trial. Out of abundance of caution, I quote
verbatim the specific orders made by the Court in this respect.

277
 “To ex pedite the determ ination of this case, the trial w ill be
by affidavits. How ever, the parties them selves m ay lead oral
evidence. Oral evidence by any other person m ay be allow ed
w here com pelling reasons therefore are given. Accordingly,
the P etitioners should file their affidavits of the w itnesses
they propose to rely on in proof of their case on or before 7 th
April, 2013”. The Respondents should likew ise file the
affidavits of their w itnesses w ithin 5 days from the service
upon them of the P etitioners said affidavits. Cross-
ex am ination and re-ex am ination of all the affidavits m ay in
the discretion of the Court be allow ed.”

In pursuance of the above directives, the Petitioners, acting through the

2nd Petitioner, Dr. Mahamadu Bawumia filed on the 27th of April, 2013 an
affidavit together with all the exhibits they intend to rely on to establish
their case.

Out of abundance of caution, I deem it appropriate at this stage to refer

specifically to paragraphs 42 through to 67 of the affidavit sworn to by the
2nd Petitioner, already referred to supra.

2ND PETITIONERS SWORN AFFIDAVIT

42. “That in combining these multiple categories statistically,

278
 care was taken to avoid double counting. This was achieved
by making sure the various categories of irregularities are
mutually exclusive so that no polling station where an
irregularity occurred could belong to more than one
category.

43. That the constitutional and statutory violations, irregularities and

malpractices which constitute the basis of this petition have been
classified into twenty-four (24) distinct and mutually exclusive
categories in which no polling station can belong to more than
one category, thereby avoiding double counting.

The Specific Combination of Constitutional and Statutory

Violations Irregularities and Malpractices

44. That there were 320 polling stations where exclusive instances of
the constitutional and statutory violations of over voting occurred,
and can be found on the same pink sheets. This completely vitiated
all the 130, 136 votes cast in those polling stations. Attached
herewith and marked as Exhibits MB-C, MB-C-1 to MB-C-319 are
photocopies of the pink sheets of the polling stations where these
infractions occurred.

45. That there were 122 polling stations where instances of combined

279
 constitutional and statutory violations in the nature of: (i) over-
voting and (ii) voting without biometric verification occurred,
and can be found on the same pink sheets. This completely vitiated
the 45,497 votes cast at those polling stations. Attached herewith
and marked as Exhibits MB-D, MB-D-1 to MB-D-121 are
photocopies of the pink sheets of the polling stations where these
infractions occurred.

46. That there were 374 polling stations where instances of combined
constitutional and statutory violations and irregularities in the nature
of:(i) over-voting; (ii) voting without biometric verification;
and (iii) same serial numbers on pink sheets with different
results occurred, and can be found on the same pink sheets.
The combined effect of these infractions completely vitiated the
147,032 votes cast in those polling stations. Attached herewith and
marked as Exhibits MB-E, MB-E-1 to MB-E-373 are photocopies
of the pink sheets of the polling stations where these infractions
occurred.

47. That there were 66 polling stations where instances of combined

constitutional and statutory violations, malpractices and irregularities
in the nature of: (i) over-voting; (ii) voting without biometric
verification; (iii) the same serial numbers on ‘pink sheets’;
with different results and (iv) absence of signatures of the
presiding officers or their assistants on pink sheets occurred,

280
 and can be found on the same pink sheets. The combined effect
of these infractions completely vitiated the 32, 469 votes cast in
these polling stations. Attached herewith and marked as Exhibits
MB-F, MB-F-1 to MB-F-65 are photocopies of the pink sheets of
the polling stations where these infractions occurred.

48. That there were 20 polling stations where instances of combined

constitutional and statutory violations, malpractices and irregularities
in the nature of: (i) over-voting; (ii) voting without biometric
verification; and (iii) absence of signatures of the presiding
officers or their assistants on pink sheets occurred, and can
be found on the same pink sheets. The combined effect of these
infractions completely vitiated the 9,408 votes cast in these polling
stations. Attached herewith and marked as Exhibits MB-G, MB-G-1
to MB-G-19 are photocopies of the pink sheets of the polling
stations where these infractions occurred.

49. That there were 882 polling stations where instances of combined
constitutional and statutory violations, malpractices and irregularities
in the nature of; (i) over-voting and (ii) the same serial numbers
on pink sheets with different results occurred, and can be
found on the same pink sheets. The combined effect of these
infractions affected the 397,532 votes cast in those polling stations.
Attached herewith and marked as Exhibits MB-H, MB-H-1 to MB-

281
 H-881 are photocopies of pink sheets of the polling stations where
these infractions occurred.

50. That there were 196 polling stations where instances of combined
constitutional and statutory violations, malpractices and irregularities
in the nature of (i) over-voting; (ii) same serial numbers on
pink sheets with different results; and (iii) absence of
signatures of the presiding officers or their assistants on
pink sheets occurred, and can be found on the same pink
sheets. The combined effect of these infractions vitiated 91, 129
votes. Attached herewith and marked as Exhibits MB-J, MB-J-1
to MB-J-195 are photocopies of pink sheets of the polling stations
where these infractions occurred.

51. That there were 71 polling stations where instances of combined

constitutional and statutory violations and malpractices in the nature

of (i) over-voting and (ii) absence of signatures of the
presiding officers or their assistants on pink sheets occurred,
and can be found on the same pink sheets. The combined effect of
these infractions vitiated 31,561 votes. Attached herewith and
marked as Exhibits MB-K, MB-K-1 to MB-K-70 are photocopies of
pink sheets of the polling stations where these infractions occurred.

52. That there were 379 polling stations where exclusive instances of

voting without biometric verification occurred and can be found

on the pink sheets. The combined effect of this infraction vitiated

282
 134,289 votes. Attached herewith and marked as Exhibits MB-L,
MB-L-1 to MB-L-378 are photocopies of pink sheets of the polling
stations where these infractions occurred.

53. That there were 1,068 polling stations where instances of

combined statutory violations and malpractices in the nature of: (i)

voting without biometric verification; and (ii) same serial
numbers on pink sheets with different results occurred, and
can be found on the same pink sheets. The combined effect of
these infractions vitiated 408,837 votes. Attached herewith and
marked as Exhibits MB-M, MB-M-1 to MB-M-1,067 are
photocopies of pink sheets of the polling stations where these
infractions occurred.

54. That there were 185 polling stations where instances of combined

constitutional and statutory violations, malpractice and irregularities

in the nature of: (i) voting without biometric verification; (ii)
absence of signatures of the presiding officers or their
assistants on pink sheets occurred, and can be found on the
same pink sheets. The combined effect of these infractions
vitiated 72,953 votes. Attached herewith and marked as Exhibits
MB-N, MB-N-1 to MB-N-185 are photocopies of pink sheets of the
polling stations where these infractions occurred.

55. That there were 59 polling stations where instances of combined

283
 constitutional and statutory violations in the nature of: (i) voting
without biometric verification; and (ii) absence of signatures
of the presiding officers or their assistants on ‘pink sheet’
occurred, and can be found on the same pink sheets. The
combined effect of these infractions vitiated 19,816 votes.
Attached herewith and marked as Exhibits MB-O, MB-O-1 to MB-
O-58 are photocopies of pink sheets of the polling stations where
these infractions occurred.

56. That there were 6,823 polling stations where exclusive instances

of the malpractice of same serial numbers on pink sheets

with different results took place. The combined effect of these
infractions vitiated 2,614,556 votes. Attached herewith and marked
as Exhibits MB-P, MB- P-1 to MB-P-6,822 are photocopies of pink
sheets of the polling stations where these infractions occurred.

57. That there were 907 polling stations where instances of combined

constitutional and statutory violations and malpractices in the nature

of: (i) same serial numbers on pink sheets with different
results; and (ii) absence of signatures of the presiding
officers or their assistants on pink sheets occurred, and can
be found on the pink sheets. The combined effect of these
infractions vitiated 365,676 votes. Attached herewith and marked
as Exhibits MB-Q, MB-Q-1 to MB-Q-906 are photocopies of pink
sheets of the polling stations where these infractions occurred.

284
58. That there were 310 polling stations where exclusive instances of

constitutional and statutory violations in the nature of: absence of

signatures of the presiding officers or their assistants on
pink sheets occurred, and can be found on the pink sheets.
The combined effect of these infractions vitiated 112,754 votes.
Attached herewith and marked as Exhibits MB-S, MB-S-1 to MB-
S-309 are photocopies of pink sheets of the polling stations where
these infractions occurred.

59. That there were 3 polling stations where exclusive instances of the

irregularities and malpractices of polling stations with same polling

station codes and different results occurred, and can be
found on the pink sheets. The combined effect of these infractions
vitiated 687 votes. Attached herewith and marked as Exhibits MB-
T, MB-T-1 and MB-T-2 are photocopies of pink sheets of the
polling stations where these infractions occurred.

60. That there were 2 polling stations where instances of combined

malpractices, statutory violations and irregularities in the nature of:

(i) same serial numbers on pink sheets with different results;
(ii) voting without biometric verification; and (iii) polling
stations with same polling station codes and different results
occurred, and can be found on the same pink sheets. The combined
effect of these infractions vitiated 581 votes. Attached herewith

285
 and marked as Exhibits MB-U and MB-U-1 are photocopies of pink
sheets of the polling stations where these infractions occurred.

61. That there were 12 polling stations where instances of combined

malpractices and irregularities in the nature of: (i) same serial

numbers on pink sheets with different results; and (ii)
polling stations with same polling stations codes and
different results occurred, and can be found on the same
pink sheets. The combined effect of these infractions vitiated
4,710 votes. Attached herewith and marked as Exhibits MB-V, MB-
V-1 to MB-V-11 are photocopies of pink sheets of the polling
stations where these infractions occurred.

62. That there were 4 polling stations where instances of combined

constitutional and statutory violations, malpractices and irregularities

in the nature of: (i) same serial numbers on pink sheets with
different results; (ii) absence of the signatures of the
presiding officers or their assistants on the pink sheets; and
(iii) polling stations with same polling stations codes and
different results occurred, and can be found on the same
pink sheets. The combined effect of these infractions vitiated
1,261 votes. Attached herewith and marked as Exhibits MB-W,
MB-WI, MB-W-2 and MB-W-3 are photocopies of pink sheets of
the polling stations where these infractions occurred.

63. That there were 8 polling stations where instances of combined

286
 constitutional and statutory violations, malpractices and irregularities
in the nature of: (i) over-voting; (ii) same serial numbers on
pink sheets with different results: and (ii) polling stations
with same polling stations codes and different results
occurred, and can be found on the same pink sheets. The
combined effect of these infractions vitiated 3,167 votes. Attached
herewith and marked as Exhibits MB-X, MB-X-1 to MB-X-7 are
photocopies of pink sheets of the polling stations where these
infractions occurred.

64. Th11.538 -2.518-7(4[(64.).8c0D71CDd [(X)-3(,)-7( )1(MB)]TJ 0 T o)- acent4[n

287
powers conferred on this Court under article 64 (1) and (2) of the
Constitution, 1992.

The resolution of the second issue is somewhat difficult to resolve. This is

because, it has to be determined whether these violations, omissions etc,
affected the outcome of the results.

In a vast majority of the categories, I can conclusively say that they have
had no effect on the outcome of the elections whatsoever. However, when
cumulatively put together, the said violations may affect the outcome of
the elections.

My decision on the

i. Duplicate Serial numbers;

ii. Voting without biometric verification; and

iii. Unknown polling station categories;

iv. Duplicate polling station results

is that I reject those claims outright and no consequence arises. They are
therefore dismissed.

446
However, since I have upheld in its entirety the “No presiding officer
signature category”, albeit with a different and much reduced set of pink
sheets, I must admit these may affect the outcome of the results of the
presidential elections. See Table 12A of Volume 2B of petitioners address
referred to above and my conclusion on this category as stated in the main
body of the judgment.

The petitioner’s relief one will therefore be granted in respect of the No

P residing Officer Signature Category in terms of my decision as is
contained in the main body of the judgment.

Similarly, the petitioners would be deemed to be successful in respect of

their relief one in the over-voting category in terms as shall be determined
using the road map as indicated in the main body of the judgment during
the audit of the affected pink sheets.

Relief two is however accordingly dismissed. In respect of relief three, and

in view of my decision in the over voting and no presiding officer signature
category, and subject also to the total tally of votes in these two
categories that the audit shall disclose, where the total tally of votes in the
said category, reduce the total votes attributed to the 1st Respondent to fall
below the 50% plus one percentage, then in that case in line with
constitutional provisions in article 63 (3) I will direct that there should be a
re-run of the presidential elections in only the affected polling stations
between the 1st Petitioner and 1st Respondent.

Subject to the above decision, the petitioners claims stand dismissed.

447
To me the lessons in all these for the 2nd respondent’s as an institution is
very important. As an electoral administration body, the 2nd respondent’s
and I dare say the political parties who are major stakeholders have a duty
to review our entire electoral system with particular reference to entries on
the pink sheets. This has become very critical in view of the many errors,
that have become a routine feature of the pink sheets.

If it is understood that, these pink sheets are the documents that

are used to declare the results if no objections are raised, then the
method of recruitment, training and general orientation of the
staff that fill those forms at the polling stations, be they
temporary or permanent engaged in performing critical core
functions on election day has to be revised.

Similarly, I will also appeal to the political parties or candidates to ensure

that those persons they engage as agents to observe the elections at the
polling stations are not only loyal and dedicated party persons, but persons
who are competent enough to understand the implications of the
recordings on the pink sheets and the sequential nature of the said
recordings.

I will also take this opportunity to congratulate the parties and their
Counsel for their conduct and assistance to the Court. This was despite the
fact that, even though tension was initially very high with loss of

448
confidence and trust among the Lawyers, with the passage of time, those
barriers were removed and the case progressed apace to its conclusion.

Today’s judgment is a victory I believe once again for Ghana’s democratic

credentials, to wit, the rule of law and our pursuit of governance related
issues. Let me therefore conclude this judgment with my favorite childhood
poem of Lord Alfred Tennyson “THE BROOK”.

“I am sometimes really amazed at whether Lord Tennyson had in his

mind rivers and streams like the Volta, Dayi, Tordze or Onyasia when
he wrote “The Brook” which I believe many people were made to
memorise in their basic school.

Since I find the words therein very apt and useful for the closing
pages of this judgment, I have decided to use them by adopting it to
our local situation.

I come from haunts of coot and hern,

I make a sudden sally
And sparkle out among the fern,
To bicker down a valley.
By thirty hills I hurry down,
Or slip between the ridges,
By twenty thorps, a little town,
And half a hundred bridges…

449
The little town might well be Accra.

I chatter over stony ways,

In little sharps and trebles,
I bubble into eddying bays,
I babble on the pebbles.

With many a curve my banks I fret

By many a field and fallow,
And many a fairy foreland set
With willow-weed and mallow.

I chatter, charter, as I flow

To join the brimming river,
For men may come and men may go,
But I go on ever.

And I add, for NPP and NDC may come and go, but Ghana goes on
forever as a country.

I wind about, and in and out,

With here a blossom sailing
And here and there a lusty trout
And here and there a grayling,

450
And if I may substitute Tilapia for the trout that will be more
meaningful

And here and there a foamy-flake

Upon me, as I travel
With many a silvery waterbreak
Above the golden gravel,

And draw them all along, and flow

To join the brimming river,
For men may come and men may go,
But I go on for ever.

And I add that individual political giants may come and go,
but we as citizens of Ghana continue with our lives

I steal by lawns and grassy plot,

I slide by hazel covers;
I move the sweet forget-me-nots
That grow for happy lovers.

I slip, I slide, I groom, I glance,

Among my skimming swallows;
I make the netted sunbean dance
Against my sandy shallows.

451
 I murmur under moon and stars
In brambly wildernesses;
I linger by my shingly bars;
I loiter round my cresses;
And out again I curve and flow
To join the brimming river,
For men may come and men may go,
But I go on for ever.

And I add that as Nkrumah, Busia, Limann, Rawlings,

Kufuor and Mills have all come and gone, but we as
Ghanaians will go on forever

It is a happy thought that the brook in our context, the Volta goes on
for ever: but we come and go.”

In this respect, I will liken the river in the poem to the Volta and other
rivers and streams mentioned supra. The Volta flows from the North by
different tributaries until it is dammed at Akosombo.

Thereafter it flows swiftly through to another Dam at Kpong and flows

thereafter through the turbines to the dry savanna lands through Adidome,
Sogakope until it enters into the sea at the estuary at Ada.

452
Is it not a joy to realise that whilst the Volta flows into the sea every
second and in the process loses its identity, the phenomenon of its flowing
down through its tributaries in to the sea goes on forever.

I will therefore entreat all my countrymen and women to bear this happy
thought about the brook, which goes on forever, but we the players, i.e.
those of us who benefit from the brook we come and go. Life must
definitely continue to go on forever despite the reverses we suffer one way
or the other.

GOD BLESS GHANA.

(SGD) J. V. M. DOTSE

JUSTICE OF THE SUPREME COURT

453
ANI N YEBOAH, J.S.C

The petitioners herein by an amended petition dated the

8/02/2013 claimed the following declaratory reliefs:

i. A declaration that John Dramani Mahama, the 2nd

Respondent herein was not validly elected president of the
Republic of Ghana.

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

iii. Consequential orders as to this court may seem meet.

The facts of this matter appear not to be in any serious

controversy as the events culminating to this petition were not
disputed by the parties herein.

THE FACTS:

Ghana went to polls to elect a president on the 7th and 8th

December 2012. The presidential election was constested by
eight candidates. The first petitioner herein Nana Addo Dankwa
Akufo-Addo was the candidate for the New Patriotic Party
whereas the first respondent His Excellency John Dramani
Mahama was the candidate for the National Democratic
Congress. The second respondent herein who under Article 45 of
the Constitution is the sole constitutional body charged to

454
conduct elections declared the first respondent herein as winner
of the presidential election. The first respondent obtained 5,571,761 votes
representing 50.7% of the valid votes cast thereby satisfying the
constitutional requirement under Article 63(3) of the Constitution. The first
petitioner obtained 5,248,898 votes representing 47.74% of the valid votes
cast. The contestants obtained votes as follows:
(1) John Dramani Mahama --5,574,761 50.70%

(2) Dr.Henry Herbert Lartey --88,223 0.35%

(3) Nana Addo Dankwa Akufo-Addo --5,248,898 47.74%

(4) Dr Papa Kwesi Nduom --64,362 0.59%

(5) Akwai Addai Odike --8,877 0.08%

(6) Hassan Ayariga --24,617 0.22%

(7) Dr.Michael Abu Sakara Forster --20,323 0.18%

(8) Jacob Osei Yeboah --15,201 0.14%

--------------------------- ------------

10,995,262 100%
---------------------------- ------------

Pursuant to the declaration of the results by the second respondent that the
first respondent had obtained 50.7% of the valid votes cast, the petitioners
invoked our jurisdiction under Article 64(1) of the Constitution by this
455
petition challenging the validity of the election of the first respondent on
several grounds captured in the petition. Some of the grounds were, over-
voting, lack of signatures on the declaration forms by the presiding officers,
lack of biometric verification of voters, and duplicate serial numbers,
unknown polling stations and duplicate polling station code.

The respondents resisted the allegations of electoral improprieties

catalogued by the petitioners by stoutly denying all the
allegations of improprieties leveled against the second
respondent. Reading the answer of the second respondent to the
petition, it became clear that the second respondent never
admitted any of the irregularities or electoral improprieties
leveled against it and maintained throughout that the election
was conducted fairly and devoid of any such lapses as contended
by the petitioners. The answers of the other respondents were
supportive of the line of defence of the second respondents.

It must be pointed out for a fuller record in such a monumental

case that this petition was initially against the first two
respondents. The third respondent, however, successfully applied
for and obtained an order for joinder making them the third
respondent to this petition. Pursuant to the order for joinder, the
third respondent proceeded to lodge its answer to the petition.

456
Several interlocutory applications were made to us in course of
the proceedings (apart from the other for joinder) in the form of
further and better particulars, interrogatories, production and
inspection of documents etc. These interlocutory applications in
my view narrowed the scope of the trial.

At the applications for directions stage, the parties raised

several issues for the court to determine. However, this court
mindful of the pleadings and the nature of the reliefs sought
`imposed' only two issues on the parties for determination of
this petition. These issues were couched as follows:

i. Whether or not there were violations, omissions, malpractices

and irregularities in the conduct of the presidential elections
held on 7th and 8th of December 2012; and

ii. Whether or not such violations, omissions, malpractices

and irregularities, if any, affected the outcome of the
said election.

At the application for directions stage, parties were directed to

file affidavits and annexed any relevant evidence they intended
to rely on during the trial within a specified time frame. It was
also ordered that irrespective of the fact that the court had
ordered filing of affidavits, parties were at liberty to give
evidence through their representatives. All the parties gave

457
 d. That 1st Respondent had conspired with 2nd Respondent to steal
votes for 1st respondent.

Based upon the above depositions, the 1st and 3rd Respondents prayed the
court that the Petition is wholly unmeritorious and lacks in substance.

2ND RESPONDENTS AFFIDAVIT PURSUANT TO THE DIRECTION OF

THE COURT DATED 2ND APRIL, 2013 SWORN TO BY AMADU
SULLEY DEPUTY CHAIRMAN OF THE COMMISSION

It should be noted that, in this petition the position of the 2nd Respondent,
as the constitutionally mandated body in charge of organizing and or
conducting elections in Ghana is paramount.
I will therefore devote some time to an analysis of the case as is contained
in the detailed affidavit sworn to by the 2nd Respondents.

In this regard therefore, I think it is pertinent to refer in extenso to some

relevant portions of the affidavit sworn to by Amadu Sulley and referred to
supra.

The relevant portions of the said affidavit are paragraphs 3, 6, 13, 14 and
15 of 2nd Respondents Affidavit sworn to by Amadu Sulley on 16-4-2013.

3. “The manner in which the 2012 Elections were conducted, as

300
 described in paragraph 14 of the 2nd amended answer filed on behalf
of the 2nd respondent on April 3, 2013, and the participation of
representatives of all the political parties in the procedures followed
in the Constituency Collation Centres and in the 2nd Respondent’s
Headquarters (Strong Room), makes it impossible to falsify the votes
cast and to conceal such falsification. By the same token, it is
impossible to make a false allegation of falsification and to sustain
such an allegation.

6. In the petition, the Petitioners are now seeking to overturn the

results declared by the 2nd Respondent on the grounds of

irregularities and malpractices in six “main categories”. Each of those
categories have been effectively refuted by the 2nd Respondent in its
answer filed on 07/01/2013; its amended answer filed on
27/02/2013; its Analysis of the Further and Better Particulars
provided by the petitioners application, the response filed on
12/02/2013 by the 2nd respondent to the Interrogatories submitted
by the Petitioners and the Supplementary Affidavit filed on the 2nd
Respondent on 01/04/2013 regarding the alleged 28 unknown polling
stations.

13. Paragraph 34 of the 2nd Petitioners affidavit is false. Polling Stations

are identified by their names and their unique Polling Station Codes.
The serial number on a Polling Sheet is NOT a security feature.

301
 Further, this matter has been fully explained in paragraph 18 (a) of
the 2nd Respondent’s 2nd amended answer.

14. Paragraphs 36 to 68 contain inconsistencies and are denied. The 2nd

Respondent says that the Petitioners are fastening onto errors,
committed in the completion of pink sheets, by Presiding
Officers that do not benefit any particular candidate or affect
the number of valid votes cast at polling stations.

15. The reliefs sought by the Petitioners are without merit and the
Honourable Court is requested to dismiss their petition.”

From the above depositions of the 2nd Respondent, which should be jointly
read with the depositions contained in the affidavit of Johnson Asiedu-
Nketiah, sworn to on behalf of the 1st and 3rd Respondents, already
referred to supra, it should be clear that all the Respondents vehemently
deny in substance the claims of the Petitioners.

There are some preliminary observations and comments that I would wish
to make in the case before I address the points of substance posited in the
issues.

302
PRELIMINARY COMMENTS AND OBSERVATIONS
It has already been noted that, this Presidential Election Petition is the first
of its kind in the legal annals of this country. Several persons have
therefore commented on the procedure that was adopted by the Court.
Most of the comments compared the swiftness of the Kenyan Supreme
Court in dealing with a similar election petition challenge in that country as
opposed to the near snail pace approach adopted by us in the Ghana
Supreme Court.

This therefore calls for discussions of some constitutional and statutory

provisions germane to the Ghana situation.

CONSTITUTIONAL PROVISIONS ON CHALLENGE OF VALIDITY OF

PRESIDENTIAL ELECTION

Article 64 (1) (2) and (3) of the Constitution, 1992 provides:-

64. (1) “The validity of the election of the President may be challenged
only by a citizen of Ghana who may present a petition for
the purpose to the Supreme Court w ithin tw enty-one days
after the declaration of the result of the election in respect of
which the petition is presented.
(2) A declaration by the Supreme Court that the election of
President is not valid shall be without prejudice to anything
done by the President before the declaration.

303
 (3) The Rules of Court Committee shall, by constitutional
instrument, make rues of court for the practice and procedure
for petitions to the Supreme Court challenging the election of a
President.”

From the above provisions, it is certain and clear that, in the first place,
any challenge to the validity of the election of a President can only be filed
after the declaration of the results of same by the Electoral Commission.
This means that, the Chairman of the Electoral Commission, who is the
returning officer for the Presidential election must have declared the results
by a President Elect Instrument pursuant to article 64 (9) of the
Constitution 1992.
Secondly, any person desirous of challenging the declaration of a person as
a President by the Electoral Commission has to do so within 21 days of the
declaration of the said result.

Thirdly, it should be noted that, by the provisions in article 64 (2) of the

Constitution 1992, a clear intention has been indicated that the pendency
of a challenge to the validity of the election of a person as a President
cannot stop the President from acting in that capacity as a President. That
is the purposive way in which the said provisions should be interpreted
such that there will not be any vacuum in the running of affairs of the
state.

304
That explains the rationale why the constitutional provisions in article 64,
clause 2 does not invalidate any action taken by the President before the
declaration by the Supreme Court on the validity or otherwise of the
election of the President.

Finally, article 64 (3) mandates the Rules of Court committee to make

constitutional instruments to regulate the conduct, practice and procedure
of petitions to the Supreme Court seeking to challenge the election of a
President.
It was in pursuant of the said provisions that the Supreme Court
(Amendment) Rules, 2012 C. I. 74 was promulgated.

In order to illustrate the point made supra, it is pertinent to refer to the

preamble to C. I. 74 which reads thus:

“I n ex ercise of the pow ers conferred on the Rules of Court

Com m ittee by clause (4) of article 33, clause (3) of article
64 and clause (2) of article 157 of the Constitution, these
Rules are m ade this 9 th day of January, 2012.”.

As the title of the C.I. 74 indicates, it is an amendment of the Supreme

Court Rules, 1996 C.I. 16 as amended by the Supreme Court (Amendment)
Rules, 1999 (C. I. 24).

305
C.I.74

This instrument reiterates the constitutional provisions in article 64 (1) and

(2) of the Constitution 1992 already referred to supra.

RULE 69A

This rules states that a respondent has 10 days within which to raise a
preliminary objection or file an answer to the petition. Thus, if the
petitioner has 21 days to file a petition after the declaration of the result,
then the respondents have 10 days after service to either file an answer or
raise a preliminary objection.
Considering the fact that the petition may not be served on the same date
that is filed, then there is the possibility that valuable time may again be
lost in service which may even be by substitution as provided for under
Rules 68 B, sub-rules 4 and 5 of C. I. 74.

As a country, if we are desirous of proceeding in the express highway (fast

lane) approach to the determination of such petitions by the courts, then it
is my opinion that appropriate legislation must be passed to reflect that
phenomenon. The blame must not be put at the door posts of the courts
for the snail pace approach, but with the enabling constitutional provision
and rules of procedure. These provisions and rules certainly need to be
amended to make room for expedition, without sacrificing efficiency. This is
because, there is an adage in which I believe which states that, “Justice

306
hurried, is justice buried”. It must also be noted that, the Constitution
which was promulgated and enacted and came into force on 7th January
1993 must be considered as a constitutive act of the people of Ghana
which affirmed and endorsed priceless principles and precepts which must
be honoured and respected.

ELECTRONIC SERVICE – RULE 69 B

Even though the rules provide for electronic service, it is a pity that in this
modern I.C.T world, we have not been able to implement this provision. I
believe the time is ripe for the full and effective utilization of the rules of
I.C.T not only in our mode of service of documents, but more importantly
in our scheme of work and also adduction of evidence before the court.

It is in respect of the above that I regret the inability of the Court to heed
the many applications by the Petitioners to adopt I.C.T methods of
adduction of evidence which unfortunately were not granted. It is my wish
and hope that in future, steps would be taken to ensure a smooth blend of
I.C.T with our procedural rules, just as the live telecast of proceedings was
handled progressively to allow all Ghanaians and the world at large to
watch these proceedings.

On the whole, it should be noted that C. I. 74 was passed with expeditious

and fast disposal of petitions commenced under it as its philosophical
underpinnings. This explains why provisions were made for the court to

307
give its decision not later than 15 days from the close of the hearing of the
petition.

Again it is instructive to note that, the day to day sitting including

Saturdays, Sundays and public holidays and no review of final decision
including the opening of the Court registry on all days including Saturdays
and Sundays are all designed to ensure expedition. Unfortunately, some of
the above provisions i.e. sitting on public holidays and no review have been
shot down by the Supreme Court at the instance of a plaintiff.

I have had to deal at length with the above constitutional provisions as well
as Rules of Court applicable in dealing with presidential election petitions to
drum home the fact that there is the need to make for further radical
reforms in our laws if we are to achieve what has been done elsewhere i.e.
the Kenyan experience.

PRACTICE DIRECTION

In this respect, I think the Court acted with the necessary dispatch when it
gave the practice directions on the 2nd April 2013. In retrospect, I think the
court should have been more radical in content by not allowing
unnecessary cross-examination of the parties who gave depositions in their
affidavits. Even though I concede that these cross-examinations were very
useful and gave us a lot of insight into the case before the Court, am of the

308
opinion that in future, learned counsel should be limited by allotting time
for the cross-examination and arguments on motions and objections. This
will definitely eliminate over elaboration, repetitions and excessive playing
to the gallery especially the television cameras.

INTERLOCUTORY RULINGS

During the course of hearing this petition, several interlocutory rulings

were delivered which on hindsight I thought should have been otherwise
decided in order for this Court to do substantial justice and move the
petition faster. I will refer only to a few.

1. THE RULING ON MOTION TO PRODUCE DOCUMENTS FOR

INSPECTION AND DISCOVERIES

This application was filed by the Petitioners seeking an order from the
Court directed at the 2nd Respondents to produce for their inspection and
copy being made thereof of the following:

i. The results collation forms for all the 275 collation centres for the
Presidential elections.

ii. The declaration forms that is the pink sheets for all 26,002 polling
stations.

309
On the 7th of February 2013, this Court by a unanimous decision dismissed
the Petitioners motion for production and inspection of the documents
referred to supra.

Even though the court made it clear in the ruling, that it was premature at
the time it was applied for, the Petitioners never brought it up again for re-
consideration. Perhaps if it had been brought up again, it could have been
favourably considered.

Why am I of the view that it could have been favourably considered?

i. The 2nd Respondents are the constitutional body charged with the
conduct of all pubic elections in Ghana.

ii. They are therefore the custodians of all the original documents
being requested for by the Petitioners.

iii. The explanation by the 2nd Respondent’s in their answer that the
legibility of the duplicate copies of the pink sheets which the
political parties including the Petitioner’s have is the problem. This
therefore makes it necessary that the 2nd Respondent’s who have
the originals should have been made to produce them for the
parties and the Courts to apprize themselves of the original copies.
Exhibits E.C 11 A1, E.C. 11 A2 and E. C. 11A which are all copies
of original pink sheets that the 2nd respondent was made to tender

310
 speaks volume. These exhibits exposed the lack of credibility in
some of the conduct of the 2nd respondent’s during the last
December 2012 presidential elections in view of the discrepancies
between those originals and duplicate pink sheets.

iv. Besides, evidence adduced by the Chair of the 2nd Respondent Dr.
Afari-Gyan, is to the effect that collation forms are not given to the
political parties as with pink sheets. Therefore if the petitioners
had access to the originals of these documents, they could have
revised the number of pink sheets and polling stations they were
contesting.

As a matter of fact, now that evidence has been concluded in the matter,
am of the considered opinion that, in future, in all Presidential election
petition hearings, the Electoral Commission should be mandated to
produce for inspection all the documents being contested by the
Petitioners. This will help solve problems of ineligibility or otherwise of
“pink sheets” exhibited by the petitioners.

This is very important because, as the custodian of the original copies of

these primary documents, the 2nd Respondents owe a duty to the good
people of Ghana to make a clean breast of the documents if they really do
not have any skeletons in their wardrobes to hide, reference the Exhibits E.
C. 11A - E.C 11A2 series referred to supra.

311
For example, the explanation that some pink sheets were signed at the
collation centres by the Presiding Officer’s at the instance of the Returning
Officer’s when same was detected in the absence of the political party
agents speaks volumes.

If indeed the pink sheets had been signed at the collation centres, then
perhaps those complaining might have revised their stand. Since the duty
of the courts in any case, is to do substantial justice these points should be
well noted.

Secondly, because of the problems of ineligibility of duplicate copies, the

originals if produced will be legible, then the problem could have been
solved, and the doubts about some figures which we encountered on the
pink sheets would not have arisen.

ATTEMPT BY 2ND RESPONDENTS TO TENDER COLLATION SHEETS

In the course of the testimony by Dr. Afari Gyan, an attempt was made by
him to introduce some collation forms which was objected to and upheld
by this court. Then further during the trial, it came to light that some
polling stations like the “Finger of God”, “Juaso Court Hall” and others
had more than one pink sheet, and in some cases triple pink sheets,
reference exhibit X, which are pairs of serial numbers appearing more than
once and exhibit Y, duplicate polling station codes.

312
When the 2nd Respondent’s, rightly in my view sought to tender the
collation sheets for those constituencies for the Court to be satisfied that
not more than the required number of pink sheet results were taken into
account in the collation for those constituencies, the objection was again
upheld. This denied the 2nd respondents the opportunity to explain that not
more than one pink sheet was used to collate the results.

I am however of the opinion that, those objections were upheld because

the court had previously denied the Petitioners the same opportunity when
they first sought to introduce them into the case. For purposes of
consistency, the court persisted in its previous ruling by denying the
introduction of the collation sheets.

For now, doubts have been created in our minds as to whether the
Ex hibit Y, type of situation actually found their way into the collation of
the results and therefore the declaration made by the 2nd Respondent in
favour of the 1st Respondent could have been based on exaggerated and
duplicated figures. But luckily these doubts have now been erased in our
minds by exhibits X, Y and E.C 11 series.

Similarly, when the 2nd Respondent’s also sought to introduce pink sheets
from Ashanti Region during the cross-examination of the 2nd Petitioner, Dr.
Bawumia an objection was raised and upheld by the Court which denied
the opportunity to the Respondent’s to tender pink sheets from the
stronghold of the petitioners. If indeed there were similar malpractices and

313
or irregularities and constitutional violations in other parts of the country,
then equity would have demanded that uniform rules of application be
made to apply to all such infractions of the law.

In this instance, if the 2nd Respondent had been directed to produce at

least pink sheets that are being contested for by the petitioners, those pink
sheets would have been in evidence or at least before the court, and no
legitimate objection would have been raised. After all, “What is good for
the goose is also good for the gander”. However, because of prior rulings
in the case, the court has been left with no opportunity to examine the
bonafides of the other claims.

If the above documents, had been tendered, they could have helped the
Court to determine whether the December 7th and 8th Presidential elections
were completely flawed and bereft of any legitimacy or not.

I believe as a people and country, we will take a cue from these procedural
lapses and make amends in future cases if they should arise.

2. AMENDMENT OF PETITION

I am also of the view that it is not for nothing that the Constitution 1992
and C.I. 74 provide that the petition challenging the validity of an election
should be filed within 21 days after the declaration of the results by the
Electoral Commission.

314
If therefore, a Petitioner has not been able to comprehensively assemble
all the allegations which he intends to use for the petition within the 21
days at his disposal, such a Petitioner should not be permitted to amend
his case as and when he discovers new evidence after the 21 days has
lapsed. This definitely contributed to delay in the petition hearing.

JOINDER OF THE NATIONAL DEMOCRATIC CONGRESS (NDC)

Even though the Court has derived much assistance from Counsel for the
NDC Mr. Tsatsu Tsikata for his incisive cross-examination, I am of the
considered opinion having reflected on the provisions of the Constitution
1992, the Supreme Court Rules 1996, C.I. 16 and C. I. 74, already referred
to, that there is really the need for such petitions to be expeditiously dealt
with. I am therefore of the considered view that in future, political parties
as entities should be left out of such petitions as happened when this court
granted the application for joinder of the National Democratic Congress.

The attempt by the Petitioners in including their Party Chairman in the

petition as a 3rd Petitioner I dare say was one of the factors that motivated
the 3rd Respondents to seek to join.

Once the beneficiary of the declared election result is one of the

Respondents, to wit the 1st Respondent and as at now belongs to a
recognised political party, i.e. NDC, what has to be done is for the party to
arrange the legal representation for the President such that the fortunes of
the party are not compromised.

315
I am making these observations because I am of the view that valuable
time was equally lost when the application for the joinder was made.
Similarly, the many spurious applications made by persons claiming to be
members of the NDC to join the suit to protect their votes also engaged
valuable time of the Court. But for the pro-active ruling delivered by this
court to deal with all such applications, the systematic and strategic
manner in which the applications were being filed and fixed for hearing
could have further derailed the hearing of this petition.

There is therefore the need for appropriate amendments to be made to the

rules of Court to explicitly deal with and prevent joinder of such corporate
entities like political parties and other individuals who do not have a direct
beneficial interest in the outcome of the election.

BURDEN OF PROOF

There is no doubt that the petitioners are very much aware of the standard
of proof that lies upon them as petitioners to discharge the evidential
burden to enable them convince the court as is required by law, reference
sections 10, 11(1) and 12 (1) of the Evidence Act, 1975 NRCD 323.

This sections stipulate that the burden of persuasion which the obligation
of a party requires to establish a requisite degree of belief concerning facts
in the mind of the court to prevent a ruling being made against him on an
issue is by proof by a preponderance of probabilities.

316
In giving teeth to the above provisions of the Evidence Decree, my
respected brother, Ansah JSC in the case of Takoradi Flour M ills v
Sam ir Faris [2005-2006] SCGLR 882, at 900 stated authoritatively
concerning this burden of proof in civil matters as follows:-

“It is sufficient to say that this being a civil suit, the rules of evidence
requires that the plaintiff produces sufficient evidence to make out
his claim on a preponderance of probabilities, as defined in section
12 (2) of the Evidence Decree, 1975 (NRCD 323). Our understanding
of the rules in the Evidence Decree, 1975 on the burden of proof is
that in assessing the balance of probabilities, all the evidence, be it
that of the plaintiff, or the defendant, must be considered and the
party in w hose favour the balance tilts is the person w hose
case is the m ore probable of the rival versions and is
deserving of a favourable verdict.”

Throughout the trial of this case, this duty and standard of the burden of
proof which the law has put on a plaintiff, in this case the petitioners, has
not been lost on them.

All the respondents agree with the proposition of the law on the burden
and standard of proof that lies on the petitioners to sustain their petition.

See for example the written address of learned counsel for the 1st
Respondent, Tony Lithur when he stated thus:

317
“The law is settled that the party who bears the burden of proof must
produce the required evidence of the facts in issue that has the quality of
credibility for his claim to succeed. (See sections 10 (1) and (2) and 11 (1)
and (4) of the Evidence Act, 1975 (NRCD 323). Thus, in Ackah v P ergah
Transport Lim ited & Others [2010] SCGLR 728, Her Ladyship, Mrs.
Justice Sophia Adinyira, JSC succinctly summed up the law, 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…I t is trite law that m atters that are capable of proof m ust
be proved by producing sufficient evidence so that, on all the
evidence, a reasonable m ind could conclude that the
ex istence of a fact is m ore reasonable than it’s non-
ex istence. This is the requirement of the law on evidence under
section 10 (1) and (2) and 11 (1) and (4) of the Evidence Act, 1975
(NRCD 323)”

Learned counsel for the 1st Respondent, continued his address on this issue
in the following terms:-

“Election petitions have their own dynamics in relation of proof. In the

Nigeria election case of Abubakar v Yar’Adua [2009] ALL FW LR (Pt.
457) 1 SC, the Supreme Court of Nigeria held that the burden is on the
P etitioner to prove, not only non-com pliance w ith the electoral

318
law , but also that the non-com pliance affected the results of the
election.

In the same vein, in the Canadian case of Opitz v W rzesnew skyi 2012
SCC 55-2012-10-256, the Canadian Supreme Court tersely held, by
majority opinion, that:

“An applicant w ho seeks to annul an election bears the legal

burden of proof throughout… ”

Also, in Col. Dr. Kizza Besigye v M useveni Yow eri Kaguta &
Electoral Com m ission, Election Petition No. 1 of 2001 , the majority
of the Ugandan Supreme Court Justices held as follows:

“…the burden of proof in election petitions as in other civil cases is

settled. I t lies on the P etitioner to prove his case to the
satisfaction of the Court. The only controversy surrounds the
standard of proof required to satisfy the Court.”

Continuing his submissions in the written address, learned counsel stated

as follows:

“It should be noted that, if a legal rule requires a fact to be proved,

the court must decide whether or not it happened. In the recent case
of Re B [2008] UKHL 3, Lord Hoffman aptly stated the position,
using mathematical analogy thus:

“If a legal rule requires a fact to be proved (a fact in issue), a judge

or jury must decide whether or not it happened. There is no room for
a finding that it might have happened. The law operates a binary
319
 system in which the only values are 0 and 1. The fact either
happened or it did not. I f the tribunal is left in doubt, the
doubt is resolved by a rule that one party or the other carried
the burden of proof. I f the party w ho bears the burden of
proof fails to discharge it, a value 0 is returned and the fact
is treated as not having happened. I f he does discharge it, a
value of 1 is returned and the fact is treated as having
happened.”

The above statement is therefore quite authoritative and conclusive of the

issue of burden of proof.

Learned Counsel for the 3rd Respondent, Tsatsu Tsikata, in his written
address on the subject, made similar remarks as follows:-

“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 votes, which would
deprive these citizens of their constitutional right to vote, but also
that they clearly establish the factual basis on w hich 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, for this reason
alone their petition must fail. “

320
Learned counsel for the 3rd respondent then drew references to a number
of things why in his opinion the Petitioners have failed to discharge the
burden that lay upon them in proof of their petition.

Notable among these is the changing face of the number of pink sheets
they rely upon which according to counsel has been disproved by the
KP M G report .

Another instance is the fact that, the pink sheets upon which the
petitioners relied entirely for the proof of their case is itself dependent
upon several other primary sources of evidence like polling station
voters register , the polling station biom etric m achine the record
of ballot papers issued to the polling station , just to mention a few.

The input on the burden and standard of proof by learned counsel for the
2nd Respondent, Mr. James Quashie-Idun was not different in content from
the 1st and 3rd respondents. In essence, whilst acknowledging the fact that
it is the petitioners who have the burden to discharge in establishing the
proof of their case, he argued that they failed woefully to discharge that
burden. This is because, the only evidence the petitioners proffered in
proof of their many allegations are the pink sheets. According to Mr.
Quashie-Idun, the pink sheets perse cannot prove the case for the
petitioners without resort to the primary records which learned counsel for
the 3rd respondents referred to.

321
It is definitely not in dispute that the petitioners have made the
statements of Poll and Declarations of results – “P ink Sheets” as
the bedrock or alter ego of their case.

I have examined in detail the characteristics of a pink sheet, elsewhere in

this judgment. Suffice it to be that, evidence abounds conclusively in this
case that it is the pink sheets that are used to tally results on the
constituency collation sheets at the constituency collation centres.

These are in turn transmitted to the 2nd respondent’s strong room and used
for the purpose of declaration of the results. I am fairly well convinced that
a similar procedure was used in the declarations of the 2012 presidential
election results.

In my opinion, whenever the petitioners have through a pink sheet, cast

doubts on the authenticity or correctness of a result declared at a polling
station, for purposes of the principle of producing evidence on the balance
of probabilities, as provided for in sections 10, 11 and 12 of the Evidence
Act, 1975, NRCD 323, that duty appears to have been discharged until an
explanation is given as to why it ought not to be presumed to have been
discharged. The only institution or body that can give such an explanation
is the 2nd respondent.

As a matter of fact, from the evidence, the only record of the election
given the contesting parties are the pink sheets. If therefore an issue arises
about this or that polling station in relation to it’s pink sheets which have
been produced by the party upon whom the burden lies in law, then under

322
such circumstances, the burden would be deemed to have shifted to the
respondents, especially the 2nd respondent to call evidence in rebuttal.

KPMG

It is also an undeniable fact that the petitioners case in respect of the pink
sheets has been changing consistently like the face of a cameleon. Indeed
from an initial figure of 11,916 pink sheets which they claimed they filed,
to a reduced number of 11,138, then to the KPMG counts of the following:

1. 13,926 - actual number of pink sheets counted from the

Registrar’s set. Out of this, 8675 are unique.

2. 9,856 were counted from the presiding Judge’s set.

3. 1,545 pink sheets initially unidentified.

4. 10,119 as per Table 1A of the volume 2A page 160 of the

address are the number of pink sheets the petitioners now
claim to be relying upon.

They give a breakdown of this as follows in their address:

Registrar’s set (KPMG) - 7999

Registrar’s remarks (KPMG) - 690

323
 President’s set (KPMG) - 804

President’s remarks (KPMG) - 60

Respondents cross examination exhibits - 566

Table 1A of Volume 2A of the address also lists 9,095 pink sheets on page
302 thereof as the total number of pink sheets the respondent’s prefer,
whatever that means.

Table 4 on page 287 of volume 2 of the address also lists 287 pink sheets
as the pink sheets that were duplicated by the petitioners.

All the above go to prove that the petitioners were not consistent with the
number of pink sheets they relied upon. However, once the settled figure
of 10,119 pink sheets, is far lower than their original 11,926 and also the
10,119 appear to be based somewhat on actual physical count of exhibits
by KPMG, then for purposes of admissibility the petitioners must be
deemed to be within the remit of what they originally claimed to be
contesting.

Evidence abounds on record of several exhibited pink sheets which were

deleted by the petitioners from the original list that they were relying upon.
This explains why I have stated elsewhere in this judgment that being the
first of its kind in Ghana, there is the need for this court to define rules of

324
procedure in determination of such cases. This will definitely be in
tandem with Rules 69 c (4) (8) and (9) of C. I. 74 which gives
power to the Supreme Court to inquire into and determine the
petition, by leave of the court cross-examine and re-examine a
party who has sworn an affidavit before the court, and the
examination or recall of a witness for re-examination by the court.

These are all novel provisions upon which the court may have to issue
practice directions for the purposes of giving practical effect and
demonstration to some of the above provisions.

Finally it has to be observed and noted that, since most of the crucial and
critical primary sources of authentic records of any election are in the
possession of the 2nd respondents, it should be clear that such documents
must be easily made available to the court and by necessary implication to
the contesting parties to solve issues of authenticity and genuineness of
records when these arise from the hearing of an election petition.

With the above general comments, and the observation that the petitioners
have to some extent provided credible evidence in the nature of evidence
on the face of the pink sheets, it remains to be seen how they can succeed
in proof of the various heads of claims of violations, malpractices,
irregularities, etc. These must as it were then be aligned to the resolution
of the memorandum of issues settled for and agreed to by the parties in
order for a determination of the issues involved.

325
WHAT THEN IS THE CASE OF THE PETITIONERS

Dr. Bawumia, the 2nd Petitioner, in his testimony on the 17th day of April
2013 summarised the case for the Petitioners thus:-

“I n our exam ination and analysis of the pink sheets in the

areas of over-voting, in voting w ithout biom etric w e found
constitutional and statutory violations in the areas of over-
voting in voting w ithout biom etric verification and in the
presiding officer or the assistant not signing the results
before declaration as required by law . W e also found
irregularities and violations in the areas of the large use of
duplicate serial num bers on polling stations form s and
duplicate polling stations codes. I n our ex am ination, w e also
found polling stations w hich w e could not trace to the list of
26,006 polling stations provided by the 2 nd respondent for
the conduct of the election. M y Lords, on the fact of the
pink sheets, w e also found evidence of a bloated voters
register. So these w ere the broad irregularities, the
constitutional and statutory violations, m alpractices that w e
found in our ex am ination of the pink sheets.”

The above summed up the various categories of constitutional and

statutory violations, malpractices and irregularities that the Petitioners
highlighted in their evidence before the court. These are:

326
 1. Over-voting

2. Voting without biometric verification

3. No presiding officer signature on the pink sheets as required under

the Constitution

4. Multiple use of duplicate serial numbers of pink sheets for polling

stations.

5. Use of different results on pink sheets having same polling station

code.

6. Non-existent 22 polling stations outside the 26,002 recognised ones

or unknown.

7. Bloated voters register

CONSTITUTIONAL BASIS FOR CHALLENGING PRESIDENTIAL

ELECTION

Before I proceed to deal with the above categories, let me deal briefly with
a preliminary issue. This is the Constitutional Basis for challenging
presidential results.

Undoubtedly, article 42 of the Constitution, 1992 provides as follows:-

327
 “Every citizen of Ghana of eighteen years of age or above
and of sound m ind has the right to vote and is entitled to be
registered as a voter for the purposes of public elections or
referenda”.

This right has been conferred on all citizens of Ghana who have the
qualifications stated therein, i.e.

i. Must be Ghanaian citizen

ii. Must be 18 years of age or over

iii. Must be of sound mind

These are the basic constitutional qualifications that will entitle a person
who satisfies them to be entitled to be registered and thereafter to exercise
that right to vote.

What must be noted is that, even though the said right may be
said to be absolute in some respects, it does not confer an
automatic right on a Ghanaian citizen of 18 years and over, to just
walk into a polling station during an election and demand to
exercise that right.

328
The constitutional right to vote enshrined in article 42 of the constitution
1992 is itself contingent upon some other factors, like being registered to
exercise the right as a voter.

Article 45 (a) (b) (c) (d) (e) and (f) deals with the functions of the Electoral
Commission such that it is empowered to compile the register of voters and
to revise it at such regular intervals as may be determined by law.

Article 46 of the Constitution guarantees and preserves the independence

of the Electoral Commission, whilst article 46 gives the Commission the
power to divide the country into constituencies for purposes of
parliamentary elections.

Article 51 of the Constitution 1992, actually confers on the Electoral

Commission to make rules and regulations for the conduct of its functions.
For the avoidance of doubt, the article provides as follows:-

“The Electoral Com m ission shall, by constitutional

instrum ent, m ake regulations for the effective perform ance
of its functions under this constitution or any other law , and
in particular, for the registration of voters, the conduct of
public elections and referenda, including provision for voting
by prox y”.

329
It is therefore clear that, the provision of the right to vote in article 42
whilst appearing to be absolute, is itself contingent upon the rules and
regulations made by the Commission for the conduct of the elections.

For example, if in the exercise of its functions, the Commission

has advertised for registration of persons qualified to vote within
a certain time duration and at designated polling stations, any
qualified prospective voter who fails to avail himself of that
opportunity to register, during that period and at a designated
station cannot expect to exercise the right to vote, because he
himself failed to exercise the right to be registered. It is thus to
be clearly understood that, even though the Constitution 1992
has conferred on Ghanaian citizens, the right to vote, it is
contingent upon certain other factors, the non occurrence of
which will deny any qualified and prospective voter the chance
and right to vote.

I articulated these positions clearly in my opinion in the case of Ahum ah

Ocansey v Electoral Com m ission, Centre for Hum an Rights and
Civil Liberties (CHURCI L) v Attorney General & Electoral
Com m ission, consolidated [2010] SCGLR 575, especially at 580 as
follows:-

“W hilst the 1992 Constitution per article 42 allow s all

citizens of Ghana of eighteen years and above and of sound

330
 m ind including prisoners both rem and and convicted the
right to be registered to enable them vote in public elections
and referenda, there is still the need for a legislative
fram ew ork w ithin the confines of the Constitution (reference
article 51) to regulate, control, m anage and arrange the
effective ex ercise of that function to ensure that the
Electoral Com m ission is not stam peded into taking hasty
decision w hich w ould result into chaos and confusion. W hilst
the Tehn-Addy case is authority for the proposition that
every sane Ghanaian citizen of eighteen years and above had
the autom atic right under article 42 of the 1992 Constitution,
to be registered as a voter, the instant case is authority that
irrespective of the provisions of section 7 (5) of P NDCL 284
rem and and convicted prisoners confined in a legal detention
centre have the right to be registered as voters for the
conduct of public elections in Ghana subject to the Electoral
Com m ission m aking the necessary legislative arrangem ents
to take care of the control, m anagem ent and regulatory
regim e of such an ex ercise.

Commenting further on the effect of articles 42, 45 (a) and 51 all of the
Constitution 1992, I stated at page 662 of the above case as follows:

“I n the instant suit, the w ords in article 42 w hich are

germ ane to the entire suit have to be read together w ith the
relevant and consistent provisions of the Constitution as a
331
 w hole and, in particular, articles 45 (a) of the 1992
Constitution, w hich m andates the Electoral Com m ission to
com pile the register of voters and revise it as such periods as
m ay be determ ined by law ; and also article 51, w hich also
m andates the Electoral Com m ission to m ake regulations for
the effective perform ance of its functions under the
Constitution or any other law . I t is im portant to note that
article 51 specifically m entions functions like the registration
of voters, conduct of public elections and referenda, etc.”

The above opinion clearly establishes the principle that I have labored to
explain above on the constitutional right to vote. What has to be taken into
serious consideration is the fact that, no constitutional or statutory law can
be effective if it does not take into consideration the existing conditions
and circumstances of the society for which it was enacted or for whose
benefit it was made.
In this instance, the maxim, “ex facto jus oritur” literally meaning “out of
the facts, grows the law” has to be made to apply because if the Judges
knew their facts very well such as I have labored to explain in this case,
then an attempt to interprete the Constitution will help develop it into a
living and organic document.

It is in pursuance of the above interpretation of the powers granted the

Electoral Commission that the following legislations had been enacted to

332
govern, control and regulate various aspects of the 2012 Presidential and
Parliamentary elections.

i. The Public Election (Registration of Voters) Regulations,

2012 (C. I . 72) and
ii. P ublic Elections Regulations, 2012 (C. I . 75) already
referred to supra.

As far as I understand article 42, and 51 of the Constitution 1992,

any prospective and qualified voter, who first refused to comply
with C. I. 72 and did not register under that law cannot exercise
the constitutional right to vote.

Secondly, having exercised the constitutional and statutory right

to be registered, such a prospective voter must comply with C. I.
75 during the conduct of the elections if he wants his vote to be
valid.

It should be noted that, any infractions of the laws in C. I. 72 and C. I. 75

in particular may render invalid the votes cast by a constitutionally qualified
voter.

I have had to deal with this subject at some length because it

appears to me that all the respondents are of the view that,
because the right to vote is a constitutional right, no court, not
even this Supreme Court has power to invalidate the exercise of

333
that right when infractions are made not of the voters making but
of administrative officials.

I am of the considered opinion that such a way of thinking is not only

absurd but will completely defeat the provisions in article 64 (1) of the
Constitution 1992 which provides for the challenge of the validity of the
election of a President.

I think, it will also be tidy at this point to tie in the submissions of learned
counsel for the 1st Respondent in the concluding stages of his written
address in which he chastised the petitioners of not exhausting the
administrative procedures before rushing to court.

Out of abundance of caution, let me reproduce the said submissions of

learned counsel for the 1st respondent on this point as follows:

“Respectfully, Your Lordships, w e take the view that the

nature of this Honourable Court’s Article 64 jurisdiction to
adjudicate disputes relating to presidential election is such
as w ith the greatest respect, ought to be ex ercised w ith
circum spection. I ndeed, it is our considered opinion that it
requires significant judicial deference to the Electoral
Com m ission on a w ide range of issues.

W e take the respectful view that the true intent and purport
of the broad grant of jurisdictional pow er under Article 64 is
that its ex ercise m ust be subject to the overarching
constitutional schem e, including the balance of institutional

334
 roles and the need to guard against ex cesses. On this basis,
w e invite your Lordships to ex ercise judicial restraint and to
defer to the Electoral Com m ission on m atters that touch and
concern the ex ercise of its core functions.

I n the specific context of this case, the fact that Your

Lordship have had to painstakingly pore over pink sheets for
m onths and listen to tedious testim ony on technical aspects
of elections could havebeen avoided if the P etitioners w ere
com pelled to settle their grievances, in the first instance,
through the adm inistrative process available for redress
before initiating their petition. I n this w ay, all that Your
Lordships w ould have been required to do in the ex ercise of
your pow er under article 64 of the Constitution w ould have
been to review the decision of the Electoral Com m ission in
line w ith the constitutional standard of review under article
23 of the Constitution and decide w hether or not it w as
reasonable and in accord w ith the requirem ents im posed by
the P residential Elections Act and the P ublic Elections
Regulations.”

At this stage, let me quote also verbatim the provisions of article 23 of the
Constitution which provides as follows:-

Administrative Justice

“Adm inistrative bodies and adm inistrative officials shall act

fairly and reasonably and com ply w ith the requirem ents

335
 im posed on them by law and persons aggrieved by the
ex ercise of such acts and decisions shall have the right to
seek redress before a court or other tribunal”.

Evidence abounds in this Court that the first point of call by the Petitioners
was to send a letter of complaint to the Chairman of the 2nd Respondents
in which they catalogued a number of irregularities and sought his
intervention.

Exhibit N.D.C 43, which is a petition to the 2nd respondents by the

petitioners which was tendered by Counsel for the 3rd respondents through
the 2nd petitioner on 14th May 2013.

“The Returning Officer 9th December 2012

Presidential Election 2012
Electoral Commission
Accra

Dear Sir

RE: REQUEST FOR AN AUDI T OF VERI FI CATI ON M ACHI NES

AND RECOUNT OF THE P RESI DENTI AL BALLOT

I write as Chairman of NPP to express concerns of our Party over the

conduct of this year’s general election, particularly with regards to
the Presidential poll. I am doing so because I believe that the proper
conduct and declaration of results of a credible process is the surest
way to promote the peace and stability of our democratic nation.

336
I have attached here a copy of a statement I have issued, that has
set out in detail our concerns.

I ask that you consider the widespread and systemic abuse of the
electoral process, witnessed across the country and aided by H.E the
President, John Dramani Mahama’s statement for people to vote even
if not verified by the machines, which is clearly unlawful, some of
which are cited in our attached statement.

W e request that you, as the Returning Officer of the

P residential Elections,

(i) Cause an audit of the Verification M achine to

establish that it tallies w ith Constituency Collated
signed results and
(ii) Order a re-collation of the presidential ballot at the
constituency level to help establish the credibility
and accuracy of this year’s P residential election.

This in m y view w ould assist considerably to allay public

anx iety, w hich is grow ing hour by hour and due to the
announcem ents being m ade in the Ghanaian m edia. I t
w ould also obviate any legal and protracted judicial
proceedings on the issues and perm it the resolutions of our
concerns prom ptly, to enable due declaration to be m ade.

337
 In the light of the above concerns, we request for an immediate
meeting with your good self to find a resolution to these matters
before you announce the results of the 2012 elections.

Yours truly,
Jake Otanka Obetsebi-Lamptey
National Chairman, New Patriotic Party”

In the light of the above scenario, it is my opinion that, the Petitioners

were pushed to this court albeit prematurely by the indecent haste of the
Chair of the 2nd Respondent who took less than a day to address the
concerns raised in the above petition and asked the petitioners to go to
court.

Perhaps, if the 2nd Respondent had exercised a little bit of tolerance and
discretion which are hallmarks of the type of office which the Chairman
occupies, the quick resort to this court may have been avoided.

It should also be clear to all and sundry that time begins to run
immediately the Presidential Elections results have been declared by the
chairman of the Electoral Commission. This is further buttressed by article
64 (1) which provides a 21 day period within which the petition to
challenge the election of the President must be presented. As far as I am
concerned, the petitioners having been pushed to the wall by the 2nd
Respondent, they then had to act timeoulsy to ensure that time does not
run against them. In the circumstances I am unable to accede to learned
Counsel for 1st Respondent, Mr. Tony Lithur’s submissions in this respect,

338
questioning the proprietary or improprietary of the request considering the
independent nature of the Electoral Commission vis-à-vis the
Administrative bodies intended in article 23 of the Constitution 1992.

I am of the firm conviction that, the petitioners have lawfully and validly
invoked this courts jurisdiction under article 64 (1) of the Constitution 1992
and this court rightly assumed jurisdiction in the matter.

I cannot but agree with the petitioners that in a petition of this

nature, for the reasons stated hereunder, this Court can declare
as invalid the election of any candidate as a President of Ghana,
as the quotation from the written address of learned Counsel for
the Petitioners, Mr. Philip Addison clearly depicts as follows:-

“REASONS TO DECLARE INVALID THE ELECTION OF A

CANDIDATE AS PRESIDENT

(a) The candidate declared elected as President of Ghana at the

presidential election did not, in fact, obtain more than fifty percent
(50%) of the total number of valid votes cast at the election;

(b) There has been non-compliance with or violations of the Constitution,

the Regulations or any other law relating to the conduct of the
election and that the non-compliance/violations affected the result of
the election;

(c) The election was tainted by the perpetration of a corrupt, or other

339
 criminal act, misconduct or circumstances which reasonably could
have affected the outcome of the election;

(d) The candidate declared elected as President of Ghana was at the

time of the election not qualified or disqualified for election as
President of Ghana in terms of article 62 of the Constitution.”

OVER-VOTING

Regulation 24 (1) of C. I. 75 provides as follows:

“A voter shall not cast more than one vote when a poll is taken”

When the above provision is compared with the entries in columns A,B & C
that are required to be filled in on the pink sheets by the Presiding Officers
before the commencement of polls and in the case of Column C after polls
but before counting, then a somewhat clearer picture of what exactly over
voting means can be imagined. This is because, if columns A,B and C are
entered correctly on the pink sheets, then the number of ballots issued to
the polling station will be known, the range of the serial numbers of the
ballot papers will also be known as well as the number of voters on the
polling station register, including the number of ballots issued to voters on
the polling station register.

In column B for example, the number of voters on the polling station

register will be stated and filled in together with those on the proxy list.
The total number of the two items will give the total number of voters
eligible to vote at the polling station.

340
If therefore at the end of the polls any of the following scenario does
occur, then something irregular has occurred.

1. The total valid votes cast as found in the ballot box exceeds total
number of ballots issued out.

2. The total valid votes cast as found in the ballot box exceeds the total
number of voters on the register eligible to vote at that polling
station.

Is this the phenomenon that is called over voting? In this case, the
petitioners, speaking through Dr. Bawumia, the 1st and 3rd Respondents,
speaking through Johnson Asiedu Nketia, and Dr. Afari Gyan for the 2nd
respondents have all given their own definitions of what is over voting. I
will therefore look at all these various definitions and attempt to see if a
common thread runs through them.

DR. BAWUMIA’S DEFINITION

“Q. Can you tell the court what you mean by over voting?

A. Over voting comes in two forms. Essentially w e have a principle

of one m an one vote as w e have in the Constitution in the

law s of Ghana. The tw o form s of over voting. First, over voting
would arise if the total votes in the ballot box as recorded on the
face of the pink sheets exceeds the voters register at the polling
station as recorded on the face of the pink sheet. Secondly, over

341
 voting would arise if the total votes in the ballot box as recorded on
the face of the pink sheets ex ceed the total ballots issued to
voters recorded in Section C1 and C2 including proxy voters. So the
total votes in the ballot box if they exceed the number of voters you
have given ballot to, to vote then there is over -voting. So if hundred
people line up and you issue them 100 ballots and you count at the
end of the day and you find 150 ballots in the ballot box, then you
have over voting. I m ust add that this phenom enon of
over voting w as one that the 2 nd respondent w as very
em phatic on before the election. The Chairm an of the 2 nd
respondent m ade it very clear and for good reason, that if
the ballots are counted at the end of the day and it is found
that even one ballot ex ceeds w hat w as issued by voters
verified to vote,the results of that polling station w ill be
cancelled. My Lords this was because if that happens even if you
have one ballot above what was issued, then the integrity of the
entire voting process at that polling station is compromised. And yet
my Lords the 2ndrespondent not only made this clear but actually put
this into practice during the 2012 elections.”

From the above quotation of 2nd Respondent’s testimony on 17th April

2013, the following significant scenarios emerge for consideration. These
are

i. If the total votes in the ballot box as recorded on the pink sheets
exceeds the voters register as recorded on the pink sheets, then
there is over voting.
342
 ii. The second scenario is when the total votes in the ballot box as
recorded on the face of the pink sheets exceed the total ballots
issued to voters as recorded in columns C1 and C2 including proxy
voters then there is over-voting as well.

In order to understand this second scenario, it must be clear what C1 and

C2 refers to. The C1 and C2 are columns in the Ballot Accounting section of
the pink sheet, normally referred to as the C column. This is to be filled in
at the end of the poll but before the commencement of counting.

C1 is to the following effect – what is the number of ballots issued to

voters on the polling station register?

C2 has the following question – what is the number of ballots issued

to voters on the Proxy Voters List?

If this is the state of what the 2nd Petitioner meant by over-voting, then
why did learned counsel for the 1st Respondent state thus in his address

“On what constitutes over voting, the 1st Respondent states as follows:-

“There is some divergence of opinion between the parties about what

constitutes over-voting. Petitioners claim there are three definitions.
The first one is the situation in w hich the ballots in the sealed
box exceed the num ber of registered voters in a particular
polling station. That definition is accepted by all the parties.
343
 Dr. Afari-Gyan describes that situation as the classic definition of
over-voting. That is where the agreement ends

Petitioners define over-voting further to include a situation in w hich

the ballots in the ballots box exceed ballots issued at the
polling station. The third definition is the situation w here the
issued ballots exceed the num ber of registered voters.“

On the other hand, learned Counsel for the Petitioners, Philip Addison, in
his address to the Court gave the following two scenario’s as the classical
instances of over voting which 2nd Petitioner referred to:

i. Firstly, it is eminently clear that, w here all the num ber of

people duly registered to vote at a particular polling
station turn up on election day to vote, (and this can be
discovered from the num ber of ballots issued); the
num ber of ballots found in the box at the end of the polls
cannot be m ore than the num ber of voters registered to
vote at that polling station.”

The above is quite straightforward and is a common sense approach to the

issue.

The second instance of over voting raised by learned Counsel for

Petitioners is as follows:-

344
 (2) “Where a number less than the number of registered voters at
a particular polling station show up to vote (and this can also
be determined from the number of ballots issued) it goes
w ithout saying that the num ber of ballots found in the
box at the close of the polls should not be m ore than
the num ber of ballots issued to the voters.”

In real terms, this second scenario is only a natural deduction from the first
one stated supra and it logically flows from it.

To put matters in proper perspective, I think it will be very beneficial for

our purposes if we consider in some detail the evidence and the
explanation of Dr. Afari Gyan on what he meant by classical definition of
over voting alongside that of the witness for the 1st and 3rd respondents,
Johnson Asiedu-Nketia.

BEGINNING WITH DR. AFARI GYAN

Q. Oh yes my Lords the classical definition of over votes is w here the

ballots cast exceed the num ber of persons eligible to vote at

the polling station or if you like the num ber of persons on the
polling station register that is the classical definition of over
voting. Two new definitions have been introduced there is nothing
wrong with that but I have problems with this new definition
proposed and the problem I have with both definitions is that they

345
 limit themselves visibly to w hat is on the face of the pink sheet
as I understand the definition.

Q. Definition by?

A. The petitioners of the two definitions of over voting, where the

number of ballot exceed issued the number of voters as indicated

on the pink sheet that is the definition.

Baffoe-Bonnie: Dr. all this while we are dealing with the pink sheets in

one breath the pink sheet is your reference point so in

this case just let’s limit ourselves, I heard you say is an
excess votes or something

Witness: I said when you see there will be an excess of votes.

Baffoe-Bonnie: So it will not be an over voting

Witness: Well you see clear how you call it, this is why I have

problem with this definition is that it lim its itself

ex clusively to w hat is on the face of the pink
sheet, w hat if w hat is on the face of the pink sheet
as w e have seen.

Dotse: Before you proceed you were giving us the problems with

the two new definition of over voting. Can you finish the
problem associated with the two new definitions?

Witness: I have a general problem w ith any definition of

346
 over voting that lim its itself ex clusively to w hat is
on the face of the pink sheet because w hat is on
the face of the pink sheet.

Witness: My Lords we have just seen an instance where on the

face of the pink sheet the Presiding Officer said he was

given 4 votes whereas in fact upon close scrutiny he was
given 325 votes so any definition of over voting that limits
itself suggests to me personally that you are saying so to
speak that the face of the pink sheet never is and
m ight be an error on the face of the pink sheet. If
there is an error on the face of the pink sheet it can be
corrected by reference to the register itself so my
problem is that this definition does not make any
reference whatsoever to the register which is the based
document for the conduct of the elections that is my
problem.

Dotse: Who does the correction you are talking of?

Witness: Well if I were to read this document that one that said 4

and has given the serial range suggest that he has been
given 325 and has actually conducted an election
involving 198 people then I would be incline to take the
325 as the correct representation and not the 4.

Baffoe-Bonnie: In that case the correction is done by recourse to other

347
 figures on the pink sheet which you say can also be
wrong, but in the other case what you are saying is that
you have to make recourse to the register which means
that for example the accounting information: what is the
number of ballot issued to voters on the polling station
register, you see we have a situation where we have the
polling station register and we have the question which
says the number of people who have been issued with
but if you have to make recourse to the register to find
out whether the number voting is actually over and above
the number registered then we don’t even make room for
people dying or people not voting, on the voters register
you may have 100 and we may actually have and as you
have rightly aware with your 34 years or so you will
realize there is hardly a 100% voting in any situation
so if you say that over vote is only w hen it is above
the num ber of people in the register that is duly
som ething your…

Witness: Your Lordship I have not said over voting is only when I

said that was the classical definition now we have

adopted a new technology I w as going to go on to
that and w e spent a lot of m oney in buying that
technology and that technology should help us
m odify our definition of over voting that I am
saying, I am m aking technical point w hen you lim it
348
 it only to w hat is on the face of the pink sheet then
I have a problem w ith it.”

THEN JOHNSON ASIDEU-NKETIA’S DEFINITION

This is the definition of over voting by the witness for 1st and 3rd
respondents, Johnson Asiedu Nketia.

Q. What is your response to those allegations as made by the

petitioners?

A. My Lord I can state that there was nowhere in all the 26,000 polling

stations where over voting took place.

I am saying this because we have com e to know over voting to

m ean an occurrence w here the num ber of votes found in the
ballot box exceed the num ber of people w ho are entitled to
vote at that polling station. So that clearly is my
understanding of over voting and I do not have any
indication of this happening in any of the 26,002 polling
stations w hich w ere involved in the 2012 elections.

Q. You heard the 2nd petitioner also indicate that over voting is where

the ballots that are tallied at the end of voting for each candidate
where those exceed the number of ballots issued in a polling station?

A. I have heard about it but that was my first time of hearing over

349
 voting being defined that way in all my 34 years experience in
election in this country.

Q. In respect of the over voting allegation, you also heard the 2nd

petitioner testified in relation to pink sheets where no number has

been entered in the column about ballots issued at a particular
polling station, where no number was present, it was blank. What do
you have to say to that?

A. Yes my Lords. This m ust be as a result of som e clerical error

because ballot papers are issued and then voting takes place,
then the box is opened at the close of voting, counting takes
place, sorting takes place, the tallies are m ade and the
agents of the parties attest to the results that are obtained,
they certified the results that are obtained and m y Lords I
think that if no papers w ere issued then the election could
not have taken place at all. So I think that must be a clerical error
and at all material times, there are processes where people who are
dissatisfied or parties who are dissatisfied with the outcome can
lodge a specific complaint about what they are dissatisfied with on
the spot and action is taken subsequently on those complaints. And I
am not aware of any polling station where such complaints have
been lodged besides what were tendered about five or so polling
stations by the 2nd petitioners.”

350
Based on the above pieces of evidence, learned Counsel for the 1st
Respondent, Tony Lithur submitted very forcefully that with the
introduction of new technology, to wit biometric verification, whilst it would
be worthwhile to look at new definitions of over voting as stated by the
petitioners, it would be wrong to limit the extent of the newer expanded
definitions to entries made on the pink sheets alone, without looking at
Polling station register, the machines and conduct of the elections.
According to learned counsel, if wrong entries are made on the pink
sheets, a phenomenon learned counsel admitted has been
demonstrated to have happened during the trial, it would be wrong
to disenfranchise voters thereby.

It is however very significant to note that there has been an admission of

occurrence of entries on the pink sheets which learned Counsel conceded
are errors. What then is to be done to those entries, since they
were the basis of the declaration of the results by the 2nd
respondents?

In an attempt to offer some explanation as to how this phenomenon of

wrong entries which are errors are to be handled, Dr. Afari Gyan testified
as follows:-

“2nd Respondent in his evidence on 3rd June stated thus on issue of

over voting:

351
Q. You mentioned in your evidence some of the errors that were

committed by Presiding Officers in completion of the pink

sheets. Do you have a general comment on that?

A. My general comment will be that the errors must be looked at

very closely in order to be able to reveal their true meaning. I

must say that at the end of the day, it is the Electoral
Commission that appointed these people, these officials and we
are prepared to take responsibility for their actions. But
errors are to bedistinguished from intentional w rong
doing. A mistake is something that can be detected and
corrected and we all make mistakes. So why we take
responsibility for their actions, so that we will keep in mind,
may be all of us make one mistake or the other in the course of
our work, but I will also hope that the candidates will take
responsibility for the agents they appoint.

Witness: Let m e put it in a very short sentence. I f I notice on the

face of the pink sheet that there appears to be ex cess

votes, I w ill subject the situation to very close scrutiny
before I take firm determ ination as to w hat to do.

Q. Where there is an excess of votes in the ballot box in

comparison with what is written on the pink sheet as the votes

issued to the polling station, what would be your reaction when
you see such a pink sheet?
352
A. As I said just a moment ago, I will subject the situation to very

close scrutiny. There are a number of things that will have to

be done. I will not assume that the Presiding Officer had done
anything directly or wrongly, I will seek to redo what was
supposed to have beendone, I w ill look at the ballot papers
to find out w hether all of them fall w ithin the serial
range of the ballot issued. I have narrated som e of
these things before that I w ill go through the things
that I m entioned. But I m ust tell you that, I m ust do
everything possible to m ake sure that indeed, there
are ex cess votes because w e are dealing w ith not
abstract num bers but votes of people w ho have a
constitutional right to take part in the choice of their
leaders.”

Based on all the above pieces of evidence, learned Counsel for the 1st
Respondent finally concluded his submission thus:

“It is clear that, Petitioners have taken a very unsustainable and

unrealistic position in respect of what would constitute over voting.
Their position is that you look only to the form and not the
substance. In doing so, they discount any other source of
information, including the primary sources from which one can verify
the information on the voting accounting section of the pink sheet. In
fact, they make no allowance for any clerical or arithmetic errors on
the part of officials of 2nd Respondent in filling the said ballot

353
 accounting section, and, according to them, whatever information is
on the voter accounting section is sacred. In the words of 2nd
Petitioner.

“You and I w ere not there, the evidence is on the face of the
pink sheet.”

Learned Counsel for the 1st Respondent then referred to the Canadian case
of OPITZ and quoted from pages 38 and 39 of the report to draw
necessary comparison, to the effect that, the imperfections of the Presiding
officers in filing the forms should therefore not result in the annulment of
the votes of the affected polling stations affected by the error entries.

“Juxtaposing the evidence in this case with the Canadian case, this is what
the 1st Respondent’s state:

This situation is not different from the one described by Dr. Afari-
Gyan in relation to the temporary officers that 2nd Respondent
employs to run general elections. The imperfections of the Presiding
Officers in filling the forms should therefore not result in the
annulment of the votes at the affected polling stations. Indeed on
pages 38 and 39 (paragraph 57) of the Opitz case the Canadian
Supreme Court held that

“In our view, adopting a strict procedural approach creates a

risk that an application under Part 20 could be granted even
where the result of the election reflects the will of the electors

354
 who in fact had the right to vote. This approach places a
prem ium on form over substance, and relegates to the
back burner the Charter right to vote and the
enfranchising objective of the Act. It also runs the risk of
enlarging the margin of litigation, and is contrary to the
principle that elections should not be lightly overturned,
especially w here neither candidates nor voters have
engaged in any w rongdoing. Part 20 of the Act should have
be taken by losing candidates as an invitation to examine the
election records in search of technical administrative errors, in
the hopes of getting a second chance”.

Learned Counsel continued as follows:

“By contrast, if a vote cast by an entitled voter were to be

rejected in a contested election application because of an
irregularity, the voter would be irreparably disenfranchised.
This is especially undesirable w hen the irregularity is
outside of the voter’s control, and is caused solely by
the error of an election official”.

SUBMISSION OF 2ND RESPONDENT

On his part, learned Counsel for the 2nd respondent, James Quashie-Idun
referred copiously to the definitions of over voting and the statutory
definitions as well as the classical definition of Dr. Afari Gyan already
referred to supra. Learned Counsel also referred to Regulation 36 (2) (a) of
C. I. 75 to buttress his point in addition to Regulation 24 (1) of C. I. 75

355
already referred to supra and of particular importance to the submission of
learned Counsel for the 2nd Respondent is his reference to exhibits EC 8,
EC9 and EC10 which were all tendered by the 2nd respondent’s witness Dr.
Afari-Gyan to debunk the allegations of over voting in some three polling
stations.

Learned Counsel also reiterated the earlier contentions of the 1st and 3rd
respondents to the effect that the evidence offered by the petitioners on
their 2nd definition of over voting which is based entirely “on the face of the
pink sheets”, are based only on errors made in completing the ballot
accounting part of the pink sheets.

Counsel concluded that if any over-voting had occurred, it would have

been detected during the counting of votes and the Polling agents would
have protested. Since there were no protests, Learned Counsel concluded
that there were no instances of over voting and urged this head of claim to
be dismissed.

SUBMISSION BY COUNSEL FOR 3RD RESPONDENTS

Even though the submissions of learned Counsel for the 3rd respondent
Tsatsu Tsikata are not fundamentally different from the other respondents,
there are some striking differences which I need to highlight.

In the first place, the phenomenon of blank portions in the C and

sometimes D columns of the pink sheets had been highlighted. In this
respect I cannot but agree with learned counsel for the 3rd

356
respondent that it is wrong to deduce that any blank on column C
or D amounts to over voting.

However, what has emerged from the very extensive and rigorous cross-
examination of Dr. Bawumia by Counsel for 3rd respondents is that, there
were indeed entries on some of the pink sheets of the polling stations
which on the face of it gave the impression that there was over voting. But
the respondents contend that these are only clerical errors.

Secondly, learned counsel made reference to exhibits of polling station pink

sheets outside the range of exhibits mentioned in the affidavit of the 2nd
Petitioner. So far as I am concerned, the real issue for
determination is whether there was any instance of over-voting
as denoted by the definition of over-voting and whether those
particulars exhibits i.e. polling station pink sheets had been
captured by the KPMG report, and is also part of the range of exhibits
mentioned in the affidavit.

If it is captured by the KPMG report, then this Court would have to

determine whether that instance of over voting affected the declaration of
the results, or constituted mere errors which only go to form and not to
substance.

Thirdly, it has to be noted that, the evidence of the petitioners on over

voting is really not based on directly accusing anyone of voting more than
once as is prohibited by law, but solely on the basis of entries made on the
pink sheets.

357
Learned counsel for the 3rd respondents, made his strongest attack to this
phenomenon of over voting in a very skating and concluding remark which
I consider as inappropriate use of language as follows:-

“The cavalier approach of the 2 nd petitioner tow ards the

votes of citizens, w hich m akes him eager, for instance, to have
votes cancelled because of his dogmatic view that it is figures on the
pink sheets that should be taken and not words, is totally at odds
with the significance that our Lordship have given in many cases
before this Court to the importance of protecting the right to votes of
the citizens of Ghana. Seefor instance Tehn-Addy v A.G. &
Electoral Com m ission 1997-98 1 GLR 47, Apaloo v
Electoral Com m ission 2001 – 2002 and Ahum ah-Ocansey v
Electoral Com m ission & Others, already referred to supra.”

Whilst not downplaying the constitutional significance of the

above cases, it must also be observed that, the importance of
entries made on the pink sheets should also not be glossed over
as being of no significance. This is because, if my understanding of the
evidence on record is anything to go by, then entries made on the pink
sheets, which constituted the primary source upon which constituency
collation centre results were collated and transmitted to the 2nd
respondents strong room in Accra and which formed the basis of the
declaration of the Presidential results by the Chairman of the 2nd
respondent which are under challenge in this Court then the pink sheets,
cannot be treated lightly, except in cases where it is clear that the pink
sheet entries are errors which can be corrected by reference to other more
358
authentic primary sources which may include entries on the pink sheets
itself, the polling station register and the B.V.D.

The Apaloo v Electoral Com m ission case referred to supra, is authority

for the proposition that once the Electoral Commission has published
Constitutional Instruments numbers C.I. 12 and C.I. 15 respectively which
had regulations dealing with identity cards used in an election and under
which the 1996 elections were held, there being no distinction between
photo I.D. and thumbprint cards, the subsequent publication by the
Electoral Commission of a Gazette Notice, containing directives limiting the
I.D cards to be used for the 2000 election to photo I.D cards only
constituted an indirect amendment of relevant portions of regulations in C.
I. 12 and C. I. 15 and this was held to be ultra vires articles 51 and 297 (d)
of the Constitution 1992.

This Apaloo case is also authority for the proposition that the authority
given to Presiding Officers and their assistants to verify and check the
identity of prospective voters cannot be delegated to candidates agents,
highlighting the maxim of “delegatus non potest delegare”. Delivering his
opinion in this case, my very respected brother, Atuguba JSC made the
following pronouncements.

“The ascertainment of the identity of a prospective voter is part of

the conduct of public elections and as the constitution places
that duty on the Electoral Com m ission, it can only do so by
itself and its proper agents… To surrender the judgm ent of
the P residing Officer as to the identity of a voter to the

359
 candidate’s polling agents, is in effect, to delegate that
function to those agents, contrary to articles 45 (c) and 46 of
the Constitution.”

It can therefore be seen clearly that despite the fact that the Supreme
Court upheld the constitutional right of the prospective voter of his right to
vote and was prepared to protect that right, the protection was done in
tandem with the other statutory provisions that the Electoral Commission
was permitted by article 51 of the Constitution to enact i.e. C.I. 12 and C.
I. 15 respectively.

In the instant case, it would appear that once the directives of what
constitutes over voting are in Regulation 24 (1) of C. I. 75, the Courts also
have a duty to purposively look at the effect of those provisions and the
constitutional right to vote.

Similarly, it should be noted that, the Tehn-Addy v Electoral

Com m ission case is also authority for the proposition that the right of a
citizen to register is an inalienable right which the Supreme Court observed
the Electoral Commission failed to register the plaintiff therein and
therefore enforced it.

I will however be comfortable with a proposition which states

that since the right of a citizen to vote is constitutionally
guaranteed by and under the Constitution, that right must always
be protected and defended to ensure that participatory rights
which are part of our democratic rights via the electoral process is
well guaranteed and secured.

360
In this case, the rights of the voters in the December 2012 presidential
election did not come under threat, and is still not under any threat. The
plaint of the petitioners is to invite this Court to annul results on the basis
of entries on the face of the pink sheets of what appears to them to be
infringements under the law. Is this a legitimate request or claim? I think
so. But this Court must be in a position to distinguish between
clear instances of over voting which arise from clear breaches of
the law in Regulation 24 (1) of C. I . 75 as against errors made by
the presiding officers in the filling of the pink sheets etc. For
example, if it is clear on the pink sheet, that instead of stating the correct
number of ballot papers that had been issued to a polling station as 350
made up of (2) 100 booklets (2) 50 booklets and (2) 25 booklets making 6
booklets in all, the Presiding officer merely states 6, but gives the range of
serial numbers from which the correct figure of 350 can be deduced then it
would be wrong to use such an entry to annul results.

In such an instance, once the information to correct the error made on the
pink sheet can itself be gotten from the pink sheet, then it should be
perfectly legitimate to use such an information to correct the error.

In situations of this nature the number of registered voters, and those who
actually were issued with the ballot would have exceeded the number 6
wrongly filled in on the pink sheet. Any mechanical interpretation of
the entries on the pink sheets will not only be absurd but lead to
incongruent results and consequences.

361
The Court should however use information on the face of the pink sheets
to correct this latent error. However, if the information to correct the error
on the pink sheet cannot be verified from the pink sheet, and that figure
had been used to declare the result, and if the wrong result has had an
effect on the declared result, then it should be possible to annul it, if there
are no credible primary sources of evidence like the polling station register
to be used to cross-check such an error entry.

In view of all the above discussions I will define over voting to mean
an instance where total votes cast as found in the ballot box
exceeds the total number of ballots issued out to voters at that
particular polling station.

So far as I am concerned, this definition should encompass all other

definitions be they classical or otherwise. This is because, votes cast as
found in the ballot box, be they valid or rejected votes would have been
issued based first after the voters have been verified by the machine and
also based on the polling station register. Thus, assuming there is a
100% turn out at a particular polling station, then the votes cast
as found in the ballot box will not and should not exceed, first the
ballots issued out and also total number of voters on the register
at that particular polling station including proxy voters.

It is only when there is a consistency between the entries on the

pink sheets and the primary sources which formed the basis upon
which the entries have been made and these include the polling
station register, ballots issued to the polling station and the

362
results as counted and declared that the entries on the pink
sheets can be said to be impeccable and not subject to any
variation, change or correction.

It has to be noted that, it is also possible to have a broad based definition

of over-voting which will link the total votes cast as found in the ballot box
with the number of voters on the polling station register. This is because,
whilst the number of voters on the polling station register is the maximum
number of persons entitled to vote at a polling station, the number of
ballots issued out to voters on the polling station register, represents the
actual ballots issued out to voters who turned out to vote.

This broad based definition will allow situations where the

Presiding officer has not made a diligent count of the ballots issued out
or did not fill in column C1 on the pink sheet to enable that determination
to be made using that formula.

What should be noted however is that, no matter what definition

is applied, the value is the same. The only problem is that, if a
Presiding officer has refused and or neglected to fill in column C or C1 in
particular, or columns A, B, C or D as has been found by me to have
happened in some cases, then the polling station voters register and the
record of ballots issued to this polling station remain the only authentic
sources by which the issue or phenomenon of over-voting can be verified.

For purposes of transparency, I believe the time has come for the 2nd
respondent’s to come out with a Constitutional Instrument to regulate and
direct the officers it engages for the conduct of elections in the country,

363
such that more severe sanctions than is currently applicable in PNDCL 284,
section 30 (a) & (e) can be applied to them when flagrant and inexplicable
infractions occur in their performance of their official duties has been
proven to have happened.

This phenomenon has become very critical because of observations I have

made in a very detailed study and analysis of pink sheets stated in Table
10A of volume 2B of the Petitioners address which is List of pink sheets the
Petitioners have relied on to prove the instances of over-voting, describing
them as (Respondents preferred Data Set) whatever that means.

In this examination, I found out that there were some clear instances of
over-voting. This resulted after comparison of the entries in C1 to Total
Votes in ballot box. Wherever there was an irregularity, resort is made to
other columns in the C column in order to account for the ballots.

When the ballots issued out cannot be reconciled with the ballots
found in the box using all available means of verification on the
pink sheet, then the conclusion is reached as an over- vote.

Secondly, the study and analysis revealed that there was either wrong
addition made of the entries on the pink sheets, or there was error on the
pink sheets. In such a situation, I think the errors have to be corrected if
possible by reference to primary sources of information.

Thirdly, there are instances where one can observe that the entries have
not been completed, or errors made in the filling process. Here again, if the

364
evidence to correct the errors can be gotten from the pink sheet, or from
records available to the polling station, then it should be used.

Perhaps this explains the reason why it is desirable for such concerns to be
raised at the polling station with the view that they be corrected at the
polling station.

This is by no means an endorsement of the view that this Court has no

jurisdiction in the matter. It is clear from the Constitution 1992 and the
Presidential Election Act, 1992, PNDCL 285 that this Court has jurisdiction
alongside C. I. 16 as amended by C. I,. 74 to question such infractions of
election regulations.

Fourthly, entries on some of the pink sheets clearly create serious doubts
about the authenticity of entries on the pink sheets. This is because even
though the pink sheets are photocopies, you see instances of fresh writing
on them and other entries which make it doubtful for it to qualify as an
over-vote. In this and other instances, the production of the
original pink sheet would have solved the problem.

In the fifth place, there were simply blanks in all the columns except A or B
and the results. What happens in instances like this? The guess is
anybody’s that such pink sheets cannot be relied upon.

In the sixth instance, the writing on the pink sheets are clearly ineligible in
some of the columns or the entire sheet, apart from the results.
Sometimes, the results are also not clear. In such cases, since we rejected
an earlier application for the original pink sheets to be provided by the 2nd

365
respondents, the writings on the pink sheets remains ineligible. The
Petitioners unfortunately have to be declared as not having proven their
case in such instances.

Finally, in some instances, the observation is that the interpretation put on

the pink sheets by the Petitioners has been found to be clearly wrong and
untenable.

In retrospect, I am of the considered view that, taking the sheer numbers

of the affected pink sheets in this category into contention, it would have
been proper for the court to have ordered an Audit of the pink sheets, in
this over voting and indeed the other categories, in order for the count of
all pink sheets that qualify to be considered in line with the definition
stated supra. This would have been consistent with the request of learned
counsel for the petitioners, Mr. Addison who raised the issue on 23rd May
2013 but did not pursue it.

One would ask, what will be the effect of such an audit? In my mind, the
effect of such an audit will be to detect if for instance out of the number of
pink sheets the petitioners allege in this category of over voting –
reference tables 10 and 10A in volume 2B of Petitioners address, pages
298-328 and 330-358 which gives the list of polling stations where over-
voting occurred, in general and also using the respondents preferred Data
set respectively those that indeed qualify under this definition can be
identified without any reservations.

Taking all the above factors into consideration, it would have been fairly
easy to tally the number of votes as far as my eyes can see in this over-

366
voting category and decide the figures that are to be annulled in respect of
the 1st Petitioner and the 1st Respondent. But there is a key determinant in
the analysis on the pink sheets which may affect any tally for any of the
candidates. These are the entries in the C3 column of the Ballot Accounting
section on the pink sheets. As I have indicated elsewhere in this judgment,
there appears to me to have been sufficient indication from the 2nd
Respondent’s to the presiding officers not to fill in the C3 column because
of opposition from the political parties. As a consequence Form I C which
was going to be the yardstick used to fill in that column was not even
distributed to any of the polling stations.

As a result, I am of the considered view that, in order for any meaningful

tally of the votes in this category of over -voting to be properly made, any
entry in the C3 column which was used as a basis for this conclusion as an
over-vote has to be deleted. It will therefore be difficult, if not impossible
for me, considering the time constraints to make these detailed and
thorough analysis before coming out with the tally in the judgment.

In these circumstances whilst upholding the principle of over-vote as a

phenomenon capable of having votes annulled, I will hasten slowly with
the following as a roadmap.

All pink sheets in Table 10A of volume 2B of the petitioners address pages
330-358 already referred to supra, which are the pink sheets identified and
classified by the petitioners as being in this over-voting category, using the
Respondents preferred Data Set, (whatever that means) have to be sorted
out.

367
In this instance, an audit will have to be made, to clean the pink sheets in
that Table 10A, by ensuring that the following conditions have been met:-

1. That all the pink sheets have been captured by KPMG.

2. That all the pink sheets where the C3 column was used as a
phenomenon to denote this instance of over-voting should be deleted
and cleaned.

3. The residue of the pink sheets in Table 10A referred to supra are
those pink sheets that are to be tallied for the 1st Petitioner and the
1st Respondent respectively and the total votes therein annulled from
their aggregates.

That is the only way by which my judgment will be consistent with my

decision on the C3 column.

For now, my decision on the over-voting category is that in so far as the

entries on the pink sheets constitute over voting in line and consistent with
relevant statutes, and the definition of over voting as has been stated
supra, those votes on the pink sheets that qualify under this definition and
clean up exercise under the road map agenda should be annulled after due
examination. In all other cases, where the entries on the pink sheets
indicating over -voting are errors in the filling of those pink sheets and the
information on the primary source is clear and verifiable to correct the
errors then no over-voting occurs. In such instances, there is no over -
voting.

368
VOTING WITHOUT BIOMETRIC VERIFICATION
The Petitioners state in their opening address on the above issue as
follows:-

“Voting w ithout biom etric verification is also linked to the

protection of the integrity of the electoral process as w ell as
to the principle of universal and equal adult suffrage. I t is to
ensure that only persons entitled and properly accredited to
vote ex ercise their franchise in accordance w ith the law .”

I have already discussed the ingredients of what the constitutional right to

register and vote in public election means as contained in article 42 of the
Constitution 1992. There is no need to re-argue and discuss the same
points here. Suffice it to be that, pursuant to the above constitutional rights
and those of the Electoral Commission to make rules and regulations
governing the conduct of public elections in Ghana, C. I. 72 and C. I. 75
have been enacted.

It is therefore pertinent to consider some of the relevant provisions of C. I.

75 as follows:-

“Definition under Regulations 18 (1), 47 (1) (3) and 34 (1)

(c) all of C. I. 75

Regulation 18 (1) of C. I. 75 makes it mandatory for every polling

station to be provided with a biometric verification device. It reads:

369
“The returning officer shall provide a presiding officer with: (a) a number
of ballot boxes and ballot papers; (b) a biom etric verification
equipm ent; and (c) any other equipment or materials that the
commission considers necessary.”

Regulation 47 (1) of C. I. 75 defines a “biometric verification

equipment” to mean:

… ”a device provided at a polling station by the (Electoral)

Com m ission for the purpose of establishing by fingerprint the
identity of the voter”.

Regulation 30 of C. I. 75 reads:

(1) A presiding officer may, before delivering a ballot paper to a

person who is to vote at the election, require the person to
produce (a) a voter identification card, or (b) any other
evidence determined by the Commission, in order to
establish by fingerprint or facial recognition that the
person is the registered voter whose name and voter
identification number and particulars appear in the
register.

370
 (2) The voter shall go through a biometric verification
process.

Regulation 34 (1) of C. I. 75 lists the specific grounds upon which

voting can be adjourned:

“Where the proceedings at a polling station are interrupted or obstructed

by (a) riot, open violence, storm, flood, or other natural catastrophe, or (b)
the breakdow n of an equipm ent, the presiding officer shall in
consultation w ith the returning officer and subject to the approval
of the Com m ission, adjourn the proceedings to the follow ing day.”

From the above legislation, it is clear that before a qualified and registered
voter is given the ballot to exercise his or her franchise, the Presiding
Officer shall perform all of the following functions:-

i. Require the voter to produce an identity or any evidence to

establish finger print or facial recognition that the prospective
voter has his name on the register.
ii. Thereafter, the voter shall go through a process of biometric
verification process.

It is to be further noted and observed that, so important is this issue of

biometric verification that Regulation 34 (1) of C.I. 75 states several
reasons some of which are “force majeure” or the breakdown of a

371
biometric equipment as some of the reasons to adjourn polling at a station
to the next day.

As was rightly stated by the Petitioners, biometric verification is basically

the fact of verifying that a person is whom he says he is and it is a unique
way of indentifying some distinct biological traits of the person. For now,
it appears the biological verification process produces the true
identity of the person no matter the methodology that is used.

It is therefore re-assuring that Dr. Afari Gyan in his cross-examination on

10th June 2013 stated in answer to questions germane to the above issue
as follows:

Q. Would you agree that BVD device reinforces the principle of one
man, one vote?
A. Yes my Lord I would agree that it reinforces and it enhances
it.
Q. The BVD device also keeps account of successful verifications?
A. My Lord it does
Q. And therefore if election officials do what they are supposed to do,
nobody can vote more than once?
A. My Lords that will be correct

Learned Counsel for the Petitioners in re-emphasising this issue of

biometric verification as a pre requisite before the exercise of one’s right to

372
vote and in an attempt to show that the 2nd Respondent properly enacted
C. I. 75 referred this Court to a number of local and foreign cases, some of
which are:

1. Apaloo v Electoral Commission [2001-2002] SCGLR I

2. D.P.P v Smith [1988] UK HL 11 (12 July 1990)

3. Anderson v Celebreeze 460 U.S. 780 (1983)

4. New National Party v Government of the Republic of

South Africa & Others (CCT9/99) 1999 ZACC5, 1999 (3)
S.A 191, 1999 (5) B CLR 489, (13 April 1999)

5. Norman v Reed 502 US 279, 288 – 289

6. Mackay v Manitoba 1989 2 S.C.R 357 at 361-362

7. Asare-Baah III v A. G & Electoal Commission [2010]

SCGLR 463 at 470-471 per Wood C.J.

8. Republic v Tommy Thompson Books Ltd. [1996-97]

SCGLR 804 at 851

373
9. F. Hoffman – La Roche & Co v Secretary of State for
Trade & Industry [1974] 2 A.E.R 1128 HL

10. The Australian case of Commonwealth v Tasmania (The

Tasmania Dam Case) 158 CLR. 1

11. William Crawford v Marion Country Election Board 553

US (2008)

12. See also Ahumah-Ocansey v Electoral Commission,

Centre for Human Rights and Civil Liberties (GHURCIL)
v A. G. & Electoral Commission – Consolidated, already
referred to supra.

13. Gorman v Republic [2003-2004] 2 SCGLR 784

14. The Indian Supreme Court case of A. C. Jose v Sivan

Pillai & others 1984 SCR (3) 74 at 75 paras 86 H-89G

15. Bush v Gore 531 U.S 98 148 L.ED 2nd 388

16. U.S case of Moore v Ogilvie, 394 U.S. 814, 89 S. CT.

1493, 23 L. Ed. 2d 1 1969

374
 17. Canadian Supreme Court case of R v Oakes, 1986 Can.
LII 46 (SCC) 1986 S.C.R. 103 at 136

The gist in some of the above cases is that, despite the grant of
the right to vote which in most cases is a constitutional right, the
Electoral Administrator, in this case the 2nd Respondent, has an
equal constitutional and statutory duty and right to make rules
and regulations for the proper conduct of such an election.

Thus, where the regulations enacted by the 2nd Respondent, in this instant,
C.I. 72 and C. I. 75 have been properly and validly enacted by the
legislature in accordance with the requirements of the Constitution
reference article 11 (7) (a) (b) and (c) of the Constitution, 1992, it
possesses all the trappings of validity. As such these subsidiary legislations
must be read alongside the Constitution to give meaning and content to it.
It was certainly in this context that the Supreme Court spoke with one
voice through Prof. Ocran JSC of blessed memory in the Gorm an v
Republic case , supra as follows:-

“However, we must always guard against a sweeping invocation of

fundamental human rights as a catch-all defence of the rights of
defendants. People tend to overlook the fact that the Constitution
adopts the view of human rights that seek to balance the rights of
the individual as against the legitimate interest of the community.
While the balance is decidedly tilted in favour of the individual, the

375
 public interest and the protection of the general public are very much
part of the discourse on human rights in our Constitution.”

It must therefore be well understood that, once the enactment of C.I. 72

and C.I. 75 have not been proven to have infringed the rights of persons or
any constitutional provisions protecting the rights of citizens to vote, those
provisions must be given their full legal effect and force.

The other cases also reiterate the fact that the Electoral Administrative
bodies must exercise their mandate whenever required within the
framework of constitutional provisions, statutory in respect of substantive
or subsidiary legislation and exercise their discretion only when the law so
directs or permits. The powers of the Electoral bodies are not meant to
supplant the Constitution and the law, but rather to supplement them.
Since I have not noticed anything unconstitutional about the provisions in
C.I. 75 on biometric or face only verification before voting, I am not
interested in discussing the other cases save those that are relevant in
some other core areas of relevance.

I have to come to the above conclusion despite the submissions of the 1st
and 3rd Respondent’s to the contrary on this issue. Learned counsel for the
1st Respondent’s in his written address stated as follows:-

“On 1st Respondent’s arguments on non legal effect of biometric

verification

376
 Your Lordships, the claim by the Petitioner’s that there has been a
violation of the rules relating to biometric verification is based on an
opportunistic reliance on sub-regulation (2) of Regulation 30 which
provides that: “(2) The voter shall go through a biometric verification
process.” Notwithstanding that this sub-regulation does not define
what view from the definition of biometric verification equipment in
Regulation 47 that it means the process of verifying the identity of a
voter by establishing by fingerprint the identity of the voter.

Even if this extrapolation were correct, we submit that within the

broader context of our electoral laws, a more expansive notion of
biometric verification is necessary in order to give meaning to the
right to vote as guaranteed by the Constitution. The restrictive
approach being put forth by the Petitioner’s harbors the potential of
nullifying or impairing the right of ordinary citizens who cannot be
verified biometrically by finger print to vote. For example, persons
who are lepers, or have coarse fingers due to farming or other
manual labour or double amputees cannot vote by reason of this
restrictive meaning of biometric verification.”

With the greatest respect, I do not accept the above submissions and I
reject them. This is because it seeks to give election officials undue
discretion which reliance on biometric verification sought to remove by
making our electoral process more transparent.

The contention of the Petitioner’s which has been denied by the

Respondents, is that there had been many instances of people voting

377
without biometric verification as is evident on the face of the pink sheets.
The 2nd Respondent in particular has stated that, having examined all the
pink sheets in this category, their analysis confirmed that no voters were
allowed to vote without verification at any polling station.

This is in direct contrast to the evidence of Dr. Afari Gyan that it could be
possible for all prominent persons like Chiefs to vote without a biometric
verification. I must concede, that this statement coming from the Electoral
Commission Chairman is very unfortunate and completely nullifies the
effect of the provisions of Regulations 30 (1) and (2) of C. I. 75, which
states that “The voter shall go through a biom etric verification
process.”

This in effect means that, every prospective voter, must go

through the process of biometric verification before casting his or
her vote. Any votes that are therefore found to have been cast
without this biometric verification stands the risk of being
nullified.

Based on the above analysis, the Petitioners concluded their submissions

on this aspect of the case by stating as follows:-

“It is our respectful submission that, when the account is taken of all
the circumstances surrounding the conduct of the elections and the
inconsistent and implausible answers given by Dr. Afari-Gyan,
petitioners have on the balance of probabilities proved that voting

378
 without biometric verification occurred in various parts of the
country, contrary to the electoral laws of Ghana. It is the further
contention of the petitioners that, indeed, question C3 was
deliberately put on the pink sheet by the 2nd respondent because in
the December 2012 elections the 2nd respondent’s officers were given
discretion to dispense with biometric verification contrary to the law.
This is borne out by Exhibit G, (The Biometric Verification Device
(BVD) User Manual, 2012 Presidential and Parliamentary Elections)
pages 16 and 20 tendered on 13th June 2013 by Counsel for
Petitioners through the Chairman of the 2nd Respondent, Dr. Afari-
Gyan. Thus, it is the aggregate of information entered in C3 on the
pink sheet that gives the total number of persons who voted without
biometric verification, contrary to the law.”

Based on the above, the Petitioners in Table 11A of volume 2B of their

address have a list of Polling Stations where they allege there was voting
without biometric verification – respondents preferred Data-Set (whatever
this means).

By this table 11A on pages 406-437 of Volume 2B, the Petitioners want this
court, to annul 221,678 votes of the 1st Petitioner, whilst also annulling
526,416 votes of the 1st Respondent.

The 1st Respondent’s response to the claims of the petitioner’s was swift
and vehement. Learned Counsel for the 1st Respondent, Mr. Tony Lithur,
stated in his written address as follows:-

379
 “In the face of consistent absence of any proof of complaint in
prescribed manner at any level of the electoral system of the
irregularity alleged, (and this is the instance of voting without
biometric verification) it is submitted that the entries in C3 could not
by themselves form a sound basis for annulling votes cast by eligible
voters.”

In further support of the above submissions, learned Counsel argued that,

from the evidence of the 2nd Petitioner during cross-examination by the
counsel for the 1st and 3rd Respondents, it came to light that the evidence
on this issue of voting without biometric verification was at best confusing,
based on pink sheets entries. According to learned Counsel, once the 2nd
Petitioner admitted not having received any evidence of voting without
biometric verification at any polling station which recorded 100% of such
voting without verification the allegations must not be accepted.

Learned Counsel therefore referred the Court to bits and pieces of evidence
during the cross-examination of 2nd Petitioner. The evidence on this issue
was based on same entries in Column C1 and C3 of the pink sheets and
according to respondents, this is not logical. These are the bits and pieces
of the evidence of 2nd Petitioner under cross-examination on the issue of
voting without biometric verification.

Q. “I am suggesting to you that nobody in the 2012 election (voted)

whose name and identity has not been checked through the
biometric verification?

380
A. My Lords I was not at those polling stations all we can say is

on the face of the pink sheet this number of people voted

without biometric verification.

Q. Before the election presumably every polling station had biometric

fingerprint verification machine. At least in every polling station?

A. Yes those that worked.

Q. I believe the hullaballoo started when it was discovered that some of

the verification devices were not functioning properly?

A. I think the hullaballoo started when the machine was not functioning

properly and 1st Respondent asked that contrary to the law

people should be allowed to vote without biometric
verification.

From the evidence on record, the confusion on this issue of voting without
biometric verification has been highlighted in the column C3 on the pink
sheets.

According to the 2nd Respondent’s witness, Dr. Afari Gyan, the Presiding
Officers were all under strict instructions not to fill in that column.
However, an examination of the pink sheets has revealed that some of the
Presiding Officers did not carry out this instruction and filled this column C3
even though they did not have the requisite Form 1 C which was to be
used to fill in that column.

381
Eager to find out the method by which this directive to the Presiding
Officers was conveyed, I made an intervention which Dr. Afari Gyan
answered thus:-

“Dotse: “For the purpose of clarity so how were the presiding officers to fill
in that C3 column?

Witness: No, we told them that they should put zero because they wouldn’t
have even the means, yes to fill.

Dotse: Was it communicated to them verbally or you wrote to them with

copies to all the parties?

Witness: Erm, well, I don’t know whether we wrote to them but

we did make it part of the training.”

From the above, it is clear the 2nd Respondents did not recall writing to
their Presiding Officers or just instructing them verbally.

In any case, no further evidence was solicited by any of the parties in this
case, and so we take it that, that part of the evidence that they made
those instructions on not filling column C3 an integral part of the training of
the presiding officers substantially, stands unchallenged and must be
accepted. Reference cross-examination of Dr. Afari Gyan by learned
Counsel for the petitioners on 6th June 2013.

Learned Counsel for the 3rd Respondent, launched a systemic attack on this
phenomenon of voting without biometric verification. Because of the clarity

382
of thought and detailed references to the evidence of Dr. Afari-Gyan as a
basis for the creation of the C3 column, I will quote it in extenso:-

“The witnesses for the Respondents denied that the entries on the
pink sheets in respect of C3 were evidence of voting without
biometric registration. They insisted that many of those entries were
clerical errors. The most decisive testimony in relation to this head of
claim was that given by Dr. Afari-Gyan, the Chairman of 2nd
Respondent in evidence-in-chief. He stated that the column C1 was
not required to be filled in at all by Presiding Officers. According to
him, that column was created to take care of those voters who had
been registered by 2nd Respondent during the biometric registration
exercise that preceded voting, but whose biometric data had,
unfortunately, been lost as a result of some difficulties that 2nd
Respondent had encountered.

As an election administrator, he thought his duty was to give every

such person the chance to cast his ballot. 2nd Respondent therefore
devised this facility to allow such persons to vote without going
through biometric verification. They w ould be required to fill in
Form 1C before voting. W hen the idea w as m ooted to the
political parties, they all rejected it. He therefore gave
instructions that the Form 1C should not be sent to the
polling stations. The C3 colum n w as therefore not supposed
to be filled.

383
 “….C3 was put there in an attempt to take care of those people
who through no fault of theirs would have valid voter ID cards
in their possession but whose names will not appear on the
register and therefore could not vote. But let m e add that
w hen w e discussed this w ith the political parties, som e
of them vehem ently said no, that w e w ill not allow any
persons to be verified other than by the use of
verification m achine. I am just ex plaining w hy the C3
cam e there. The parties said no and w e could
understand that argum ent that this facility is not given
to one person, it is being given to every presiding
officer. So you are given this facility to 26,002 and it is
possible to abuse it. So we do not want it and we agreed that
that facility would not be used. Unfortunately, the forms had
already been printed, these are offshore items, so we could not
take off the C3. And what we said, and we have already said
this in an earlier communication, was that we will tell all the
presiding officers to leave that space blank because they had
already been printed and there was no way that we could take
it off. And that explains the origin of C3 on the pink sheet. It
was a very serious problem.”

This account of the origin of the colum n C3 on the pink sheet

w as not challenged by Counsel for the petitioner’s in cross-
ex am ination.

384
 Figures in the C3 column of the pink sheet, such as the same figure
in C1 being found in C3, also showed the difficulties that occurred
with this column as it was filled in according to how a Presiding
Officer interpreted it. 2nd Petitioner who did not fill in the pink sheets
was in no position to testify about the understanding of the Presiding
Officers which went into filling that part of the pink sheet.“

The explanation of the Electoral Commission Chairman to me makes sense.

I would however have expected that such a decision not to use the C3
column would have been communicated to the Presiding Officers in a
written form. However, as stated supra, that piece of evidence was not
challenged and it has therefore settled the matter.

CONCLUDING REMARKS ON THE BIOMETRIC VERIFICATION

I have already stated that I find Dr. Afari-Gyan’s explanation on the C3

column on the pink sheets which is to this effect “what is the number of
ballots issued to voters verified by the use of Form 1C (but not by the use
of BVD) quite convincing and reasonable under the circumstances.

It must be noted that, during the testimony of Dr. Afari-Gyan, he

attempted to explain how the BVD machine can be used to store data on
all those persons who voted at a particular polling station and explain how
the BVD machine works. An objection was taken by learned counsel for the
petitioners Mr. Addison to this evidence. However, by a majority decision of
7-2, the objection was over ruled.

Proceeding further, Dr. Afari Gyan then explained as follows:-

385
 “We had the machines brought to our headquarters in Accra and
verified the information and downloaded the data and made print out
of the information on the biometric verification machine.”

After this explanation, Dr. Afari Gyan then sought to tender the printout of
this information from the BVD.

However, learned counsel for the petitioners, Mr. Addison objected and
following the discourse that ensued as captured by part of the proceedings
of 3rd June 2013, this is what transpired as per the records.

“Addision: My lords we object to the tendering of this document. This is a

document that can be produced by anybody, there is nothing
on the face of this document which shows that it is an original
that comes from a particular BVD machine. In any event, this
evidence takes the petitioners by surprise. We have stated our
full case, we have filed our affidavit to which we attached a
number of pink sheets pursuant to the order of this court dated
2nd April 2013. The 2nd respondent has had the opportunity to
controvert the issues raised in our pleadings and affidavit.
Nowhere in its response was there any statement that BVD
machines have been recalled from various parts of the country
and that they were going to tender print outs of these
machines to contradict information provided by the petitioners.
My lords, more importantly, these matters were not put to our
witness when he was in the box and therefore they are trying
to conduct a new case behind our back. Again it violates the

386
 order of this court on the 2nd April, they have not attached it to
their affidavit neither is there any indication in their affidavit.
My lord I would like to refer your lordships to the Evidence Act
1975 Section 52(C) and it provides: COUNSEL READS OUT….

Dotse: Mr. Addison, I am not an IT specialist but I stand to be

corrected. Where there is a dispute on the pink sheets and as
we are been told, some data has been captured by the BVD
during the exercise, that is the voting and if as is been sought
to be done, the document is an accurate record of what
transpired during the polls, do we have the expertise to be sure
that the data captured by the machine is correct because in
these matters, that is why I believe Ghana opted for the BVD
and we cannot just throw it off like that, we must make use of
it in times of crisis or in times of dispute like this…

Quashie-Idun: My lord I would first wish to say that there is a distinction

between admissibility of a document and the weight to be
attached to it and much of what my learned friend says the
goes to the weight not the admissibility of the document.
Secondly, there is no surprise, when they were saying that
people were not biometrically verified, what they mean other
than verified by the machine. So there is no surprise, they
know the machine is there and they are saying it was not used.
When we were filing our affidavit we did not know the evidence
that was going to be led by them…

387
By court: By a majority of 7 to 2, Atuguba and Akoto-Bamfo, JJSC
dissenting, the objection is sustained. Document marked as
Exhibit R5.”

As can be seen from part of the proceedings just referred to, an

opportunity to match the data allegedly captured from the BVD with the
allegation that some people voted without biometric verification was lost.
This resulted into the rejection of the document which was subsequently
marked as Rejected 5.

This document R5 supposedly contains a list of persons who were captured

as having been verified by the BVD during voting at the polling station.
Other printouts could have been produced and compared with the number
that voted at the Polling Stations to match this allegation of voting without
biometric verification but since that document was rejected at the instance
of the Petitioners I cannot look at it.

But I can make the necessary inference and deductions. Having lost this
opportunity, I think it is inconceivable to disregard Dr. Afari Gyan’s
explanation especially as the evidence on record has not been challenged.

The 2nd Respondent’s have maintained some consistency in their

explanation of the origins of the C3 column on the pink sheets, reference
paragraph 15 (a) of the 2nd respondents amended answer.

Secondly, the petitioner’s themselves in Exhibit NDC 43, which is the letter
authored by the 3rd Petitioner dated 9th December 2012 and addressed to

388
the Chair of the 2nd respondent emphatically requested for “Audit of
verification machines and recount of Presidential Ballot”.

Even though I have already quoted this letter in extenso for purposes of
emphasis, I would want to refer to the following relevant portions again:- it
states:

“We request that you, as the Returning Officer of the Presidential

Elections; (i) cause an audit of the verification machine to establish
that it tallies with constituency collated signed results”.

The above is ample proof that, the petitioner’s themselves recognise and
admit the use of the verification machine to establish the tallies of the
election results. This is the main reason why I have stated that, it was
wrong first for learned counsel for the petitioner’s to have objected to the
tendering of the print outs from the Biometric machines to verify anomalies
whilst they themselves had requested for it as far back as 9th December
2012.

Perhaps, at that time, because of the contemporaneous nature of the

request and the conclusion of the election being almost at the same time,
they did not think about the problems of tampering with the machines.

However, there are certain things and practices as a nation we ought to

have confidence and trust in its administration, and a typical one is this
biometric verification device. Once we asked for it and it was provided, at
huge cost, we must accept it and learn to rely on it for the verification that
it was meant to provide.

389
The no biometric verification therefore in my estimation fails in its entirety.

As a matter of fact, if one considers the number of pink sheets where the
C3 column was inadvertently filled in, as apposed to those instances where
it was not filled in, the impression is that, the instruction not to fill in the
C3 column was honoured more in the observance than in the breach, I will
therefore give the benefit of the doubt to the 2nd respondent’s and accept
their explanation.

This is because of the presumption of regularity which presumes that the

instructions to the presiding officers was regular on the face of it, no
contrary evidence having been led on the matter see section 37 of
Evidence Act NRCD 323. In circumstances like this, it is critical to consider
the write up on page 16 of Exhibit E. C. 2, tendered on 24/4/2013 which is
a Guide to Election officials, column D on the said page states as follows:-

“Record the number of ballots issued to voters on the polling station

register by checking the number of ticks on the voters register.( for
this biometric register tick against the barcode) Adding the figure
obtained from the ticks in the proxy register should equal the number
of ballots in the ballot box on the assumption that each voter issued
with a ballot paper cast a ballot. The ticks on the Names Reference
List must also equal the ticks on the main voters register”

The above constitute the procedure that Presiding Officers are to follow at
each polling station. If there should be an irregularity on the face of any
pink sheet, which should give a contrary opinion to the effect that there
were some instances where voting without biometric verification was

390
permitted, the first place to verify this will be the polling station documents
referred to in the quotation supra.

Another contention by the 2nd petitioner, despite his sterling performance

in the witness box which I find puzzling is that, all entries made in CI –
wrongly should equal zero or dash.

See for example, table 10B of the petitioners address, volume 2B pages
360-363 where a list of polling stations where CI equals zero or blank. In
this instant, votes of 28,805 for the 1st Petitioner, and 62,576 for the 1st
Respondent are to be annulled.

Having considered this analysis vis-à-vis the evidence of Dr. Afari-Gyan on

why the C3 column was initially created but later abandoned at the
insistence of the political parties, I am left in no doubt that the whole
contention of voting without biometric verification has not been properly
made out. I will therefore for this and other reasons stated elsewhere in
this judgment, reject this voting without biometric verification as not
having been properly made out by the Petitioners. It is accordingly
dismissed.

NO PRESIDING OFFICER SIGNATURE CATEGORY

In order to drum home the constitutional significance of the issue of this
contentious “No Presiding Officer signature on the Pink Sheets” it is
perhaps pertinent to quote verbatim how the provisions are articulated in
the Constitution.

Article 49 provides as follows:

391
49 (1) At any public election or referendum , voting shall be by
secret ballot.
(2) I m m ediately after the close of the poll, the Presiding
Officer shall in the presence of such of the candidates or
their representatives and their polling agents as are
present ,proceed to count at that polling station, the ballot
papers of that station and record the votes cast in favour
of each candidate or question
(3) The Presiding officer, the candidates or their
representatives (and in the case of a referendum ,the
parties contesting or their agents and the polling agents if
any shall then sign a declaration stating

a. the polling station; and

b. the num ber of votes cast in favour of each candidate or
question;
and the P residing Officer shall there and then,
announce the result of the voting at the polling station
before com m unicating them to the returning officer.”

Regulation 36 of C. I. 75 contains provisions to the like effect as has been

stated in article 49 of the Constitution supra.

392
The Petitioners contend that in a number of polling stations, the
presiding officers refused, neglected or omitted to sign the pink
sheets thereby constituting a breach of the constitutional
provisions in article 49 (3) of the Constitution.

In order to properly understand how these views have been articulated by

the Petitioners, it is pertinent to quote in extenso their written submissions
on the matter. They contend as follows:

“I t is especially significant to note that, indeed, article 49 is

the only occasion on w hich details of voting at elections and
referenda are specifically spelt out in the Constitution itself.
I n all other situations, the pow er to determ ine the m anner in
w hich elections shall be conducted is left to the 2nd
respondent to regulate through the enactm ent of regulations
pursuant to article 51 . I t is obvious that the Constitution
itself recognises that activities at the polling stations are at
the bedrock of the dem ocratic system of governance, hence
the need for specific regulation of sam e by the Constitution,
rather than being left to determ ination by the Electoral
Com m ission . The m andatory provisions in article 49 have an
even greater significance w hen due account is taken of the
P ream ble to the Constitution. Serving as the spirit w ithin
w hich the Constitution is enacted, the P ream ble operates as
the yardstick by w hich the tenets of good governance ought

393
to be m easured. I n this vein, it is hum bly subm itted that any
conduct on the part of a person w hich m ilitates against the
attainm ent of the principles spelt out in the P ream ble ought
to be jettisoned by this Honourable Court. W hen regard is
had to the P ream ble, this Honourable Court w ill find that the
P rinciple of Universal Adult Suffrage, as w ell as the
com m itm ent to establish a fram ew ork of governm ent in
accordance w ith dem ocratic principles, run through the
P ream ble. I t is our further respectful subm ission that, this
being the case, any provision in the Constitution w hich aim s
at advancing or regulating the conduct of public elections
and referenda in order to realise the goals of the P ream ble
m ust be respected and enforced by this Court.”

394
It must therefore be noted that, any constitutional provision, especially one
that deals with the ground rules for the exercise of our democratic choice
of our leaders in pursuit of the principles of universal adult suffrage is not
to be taken for granted.
Furthermore, if due consideration is given to the pride of place that the
Constitution occupies in the laws of Ghana as the Grundnorm or basic law,
then such provisions should not be treated with careless and reckless
regard. In my opinion, and I dare say the opinion of all those who have
due regard to the principle of Constitutionalism, the Constitution 1992 must
be regarded and considered as sacrosanct.

As such it must be given it due pride of place in the scale of laws

of Ghana as article 11 of the Constitution stipulates. This article
puts the Constitution first among the laws of Ghana and in
descending order to Acts of P arliam ent , Constitutional
I nstrum ents and others of similar nature, the ex isting law and the
com m on law .

It is in this respect that I wish once again to quote excerpts from the
written address or submission of learned Counsel for the petitioners, Mr.
Philip Addison on the philosophical underpinnings of the provisions in
article 49 of the Constitution. He writes:

“PHILOSOPHICAL UNDERPINNINGS OF THE REQUIREMENT

OF PRESIDING OFFICERS SIGNATURE AS PROVIDED FOR IN
ARTICLE 49 (3) OF THE CONSTITUTION 1992

I t is the hum ble contention of the petitioners that, save in

certain instances w here it can clearly be dem onstrated that
395
the subject m atter in question properly belongs to the class
of m atters that can aptly be classified as having been
consigned to the ex clusive authority of a particular branch of
governm ent, like parliam entary proceedings (as held by this
Court in the cases of Tuffuor v. Attorney-General [1980] GLR
637 CA and J. H. M ensah v. Attorney-General [1996-97] GLR
320), every provision in the Constitution is to be enforced by
this Honourable Court. This is w hat is contained in the
principle of the enforceability of the Constitution. The
Constitution, being the prim ary law , serves as the yardstick
for good governance and the standard by w hich the actions
of all persons, particularly public officers, are to be
m easured. I t is for this reason that article 3(4) entrusts
every citizen w ith the duty to defend the Constitution, after
article 2 (1) has also accorded unto the citizen a right to
bring an action in the Suprem e Court for the enforcem ent of
the Constitution. This w as the effect of this Honourable
Court‟s decision in New P atriotic P arty v. Attorney-General
[1993-94] 2 GLR 35 w here the Court held that every
provision in the Constitution is capable of enforcem ent by
the Suprem e Court. I n so holding, the Court stated that the
doctrine of “political question” w as inapplicable in Ghana,
because, under articles 1, 2 and 130, all issues of
constitutional interpretation w ere justiciable by the Suprem e
Court. The Court, further stated that, in any event, the

396
 Constitution itself w as a political docum ent, since every
m atter w hich arose from it for interpretation or enforcem ent
w as bound to have a political dim ension.
The signing of declaration form s by the presiding officers,
apart from being in fulfilm ent of a constitutional duty, is also
to authenticate the results of the elections. I t is subm itted
that any announcem ent of the results of the polls, w hen
sam e have not been recorded and duly signed in accordance
w ith article 49, w ill render the subsequent com m unication of
the results to the returning officer unconstitutional, null,
void and of no effect. This is because the returning officer,
before acting on the declaration containing the results of the
polls at a particular polling station, m ust be satisfied and
ensure that the constitutional requirem ent of a signature on
the declaration form has been discharged, and that the pink
sheet is, in truth, the act or deed of the official
representative of the Electoral Com m ission, i.e. the presiding
officer at the polling station .

In direct contrast to the above submission, learned Counsel for the 1st
Respondent, Mr. Tony Lithur, in his written address on the subject,
recounted in extenso the evidence led by the 2nd Petitioner, Dr. Bawumia
during cross-examination on the subject and the evidence in chief of Mr.
Asiedu-Nketia the witness of the 1st and 3rd respondents and made the
following submissions:

397
 “The Constitution doesn’t provide a rem edy for the breach of
the provisions. I n resolving the issue, w e invite Your
Lordships to adopt the purposive approach. Under article 49
of the Constitution the duty of the P residing Officer to sign
the declaration form is preceded, first, by a count of the
votes validly cast, follow ed by the recording of the tallied
results (article 49 (2)). I n the present instance, the P residing
Officers had perform ed those duties, and the com plaint by
the P etitioners is not about the counting, the tallying or the
recording of those votes.

I t is significant to note that under article 49 (2), the duties of

the P residing Officer as stipulated above, are required to be
perform ed by him in the presence of polling agents. One of
the objects of Article 49 is, therefore, transparency. There is
no allegation by P etitioners in respect of this head of claim
that, in undertaking his duties in respect of the count and
recording of the tallied votes, the processes undertaken by
the P residing Officer w ere not transparent.”

After interrogating several issues learned Counsel sought protection under

the submission that, since the voters at those particular polling stations
have not been alleged to have committed any wrong during the voting,
they should not be penalized for the acts of the Presiding Officers.

398
Learned Counsel therefore enumerates in my view what are very weighty
and serious issues for the consideration of this Court. These are as follows:

“I n resolving the issue, therefore, w e invite your Lordships

to take into consideration the follow ing factors:

a. P etitioners do not allege that the voter has com m itted any
unlaw ful act;

b. Voters had no control over the acts and om issions of the

P residing Officers.

c. P etitioners do not allege collusion betw een the voter and the
P residing Officers, or indeed betw een the P residing Officers
and any candidate or political party;

d. They do not allege m isconduct on the part of the P residing

Officers, indeed it w ould have been counterproductive on the

part of P etitioners to allege w illfulness on the part of the
P residing Officer because then that w ould m ake P etitioners
the beneficiaries of such m isconduct, if their claim in this
regard w ere upheld;

e. There are no allegations of w illfulness on the part of the

P residing Officers.

f. The P olling agents of the candidates signed their respective

portions of the pink sheets in accordance w ith Article 49 (3)
of the Constitution;

399
g. P etitioners are not alleging any other head of claim in
respect of the polling stations that have the ex clusive
irregularity;

h. P etitioners do not challenge the results that w ere tallied and

declared at those polling stations;

i. petitioners have not com plained in prescribed m anner, either

at the polling stations or at the constituency collation
centers, about the conduct of the elections or the
declaration of the results.

Learned Counsel concluded his submission on this point by referring to a

quotation from Halsbury’s Laws of England, 4th Edition, Volume 15 (4) at
paragraph 670 and also quoted a passage from the Canadian case of Ted
Opitz v Borys W rzesnew skyj [2012] SCC 55 to support their
contention.

“No election is to be declared invalid by reason of any act or

om ission by the returning officer or any other person in
breach of his official duty in connection w ith the election or
otherw ise of the appropriate election rules. I f it appears to
the tribunal having cognizance of the question that the
election w as conducted substantially in accordance w ith the
law as to the elections, and that the act or om ission did not
affect the result. The function of the court in ex ercising this
jurisdiction is not assisted by consideration of the standard

400
 of proof but, having regard to the consequences of declaring
an election void, there m ust be a preponderance of evidence
supporting any conclusion that the rule w as affected.”

This position is in accordance with persuasive authority. In the Orpitz

case , (supra), it was held on page 42 (paragraph 66) as follows:

“By contrast, if a vote cast by an entitled voter w ere to be

rejected in a contested election application because of an
irregularity, the voter w ould be irreparably disenfranchised.
This is especially undesirable w hen the irregularity is outside
of the voter’s control, and is caused solely by the error of an
election official.”

Learned Counsel for the 3rd Respondent, Mr. Tsatsu-Tsikata in his written
address also made similar submissions in terms as referred to supra. The
only difference is that he combined the role of the party agents alongside
those of the presiding officers and the effect of other subsidiary legislations
on the “no presiding officer signatures” phenomenon, in C. I. 75.

In effect, the thrust of Mr. Tsikata’s submissions on this point is briefly

that, once the party agents of the Petitioners have signed the pink sheets
in accordance with the constitutional and statutory requirements, they
must be deemed to have accepted the results as declared to be correct
and consistent with all requisite laws and regulations.

On this point, Mr. Tsikata specifically submitted as follows:-

401
 “I t is w orth em phasizing that w hat is certified by the
candidate’s agents includes certifying that the poll w as
conducted in accordance w ith the law s and regulations
governing the conduct of the elections”. I n alm ost all of the
ex hibits filed as attachm ents to the affidavit of the 2 nd
P etitioner, the agents of the 1 st P etitioner w ere present and
their signatures on the pink sheets on w hich P etitioners rely
constitute adm issions of regularity of the election results. On
the face of their ow n docum entary evidence, therefore, the
P etitioners are confronted starkly by these adm issions m ade
on their behalf at the polling stations. There is also evidence
that these adm issions w ere repeated at the constituency
collation centres w here these results w ere entered on the
collation sheets and signed off again by representatives of
candidates.”

Concluding his submissions on this matter, learned Counsel invited the

Court to reject the invitation to the Court to annul votes of citizens of
Ghana who exercised their constitutional right to vote in the 2012
Presidential elections by relying on pink sheets which he considered
unreliable.

On his part, learned Counsel for the 2nd Respondent, Mr. James Quahsie-
Idun, the main respondent i.e. Electoral Commission, whose conduct
formed the basis of the violations had a very brief comment to make to the
following effect:-

402
 “I n response to the Further and Better P articulars subm itted
by the P etitioners on this subject, and in Ex hibit P, tendered
by the Chairm an of the 2 nd Respondent on 8 th July 2013, the
2 nd Respondent m aintained that out of the 905 pink sheets
that w ere not signed by the P residing Officer, 99% w ere
signed by the Polling Agents of the P etitioners. Dr. Afari-
Gyan adm itted the obligation of the presiding officers to sign
the declaration of results but stated that w here he om itted
to sign but the P olling Agents signed, the 2 nd respondent
considered it acceptable for the purposes of the declaration
of the results. I n this contex t, reference is m ade to
paragraph 19 above to em phasise the fact that votes at each
P olling Station w ere counted and declared in public. W e
respectfully urge your Lordship to conclude that on the
evidence presented, there is no basis to annul the votes of
any P olling Station on the basis of the absence of the
signature of a P residing Officer. The P etitioners have not
show n how that affected the outcom e of the elections.”

The above is the entire submission of the 2nd Respondent on the subject.
What is not in dispute is that, indeed, some of the Presiding Officers who
are agents of the 2nd Respondent at the polling stations did not sign the
pink sheets.

Secondly, there is evidence on record from the 2nd Respondent that, when
some of the Returning Officers detected the phenomenon of the non
signing by the Presiding Officers at the collation centres, they as it were
403
called the erring Officers to order and requested them to sign. It should
however be noted that, at that stage, all the party agents must have left
with their unsigned copies of the pink sheets by those Presiding Officers.

Thirdly, it must be noted that, any results declaration form that is

not signed by the Presiding Officer is in breach of article 49 (3) of
the Constitution 1992.

The issue that begs for an answer is whether the failure of the Presiding
Officers to sign the results declaration form (pink sheets) being a
constitutional requirement was a violation, omission, malpractice or
irregularity of the Presidential election held on 7th and 8th December 2012
and whether these affected the outcome of the results of the
elections.

What is the purpose of the provisions in article 49 of the Constitution being

inserted therein instead of leaving it for the Electoral Commission to make
rules and regulations as provided for in article 51, 63 (2) and 65 of the
Constitution 1992?

The draft proposals and report of the 1992 Constitution do not provide any
answer.

It is however safe to surmise that it might be due to our turbulent political

history in the past especially where there has been allegations of ballot
stealing and stuffing and other electoral malpractices prevalent in the 1st
Republic and thereafter.

404
It is therefore safe to conclude that it is an attempt to entrench that part of
our constitutional democracy by protecting the integrity of the ballot from
the very foundations of the law, that is the Constitution.

Indeed, if one considers, the provisions of article 49 (1) which guarantees

that in all public elections in Ghana, voting shall be by secret ballot, the
above deduction of protecting the integrity of the polls cannot be gainsaid.

For example, if there are allegations that during an election, at a particular

polling station, the casting of the ballot was not secret, that will definitely
be an infringement of the Constitution. Even though the consequences of a
breach of that provision has not been provided, a Court of law such as this
Supreme Court, vested with powers under article 2 (1) and (2) of the
Constitution 1992 to enforce and or interprete all or any of the provisions
of the Constitution as the Supreme law of Ghana as has been provided in
article 1 (2) of the Constitution 1992 cannot sit idly and do nothing.

Indeed, there are other provisions in the Constitution which makes general
provisions about the doing or performance of an event or conduct, without
necessarily providing the mechanisms for enforcement and or provide
sanctions for breach of those provisions.

For example, article 144 (7) provides that, the office of a Justice of the
Superior Court shall not be abolished while there is a substantive holder in
office.

405
In that respect therefore, even if Parliament should enact a law to abolish
any of the levels of the Superior Courts, whilst there is a holder of that
office, such a conduct will be declared unconstitutional if an action is
commenced to that effect. This is irrespective of whether the holders of the
office acquiesced in it or not.

It is in this respect necessary to regard the Constitution 1992 as a

sacrosanct document capable of biting to enable it have sanctity and
honour.

Besides, it must also be assumed rightly that the Constitution did not want
to leave these provisions contained in article 49 to the whims and caprices
of any institution or body of persons to meddle and toy with that is why
such detailed provisions on procedure at voting during public elections
have been made. If these provisions in article 49 are compared with the
provisions in article 63 and 65 of the Constitution 1992, the difference in
approach is clear and without doubt. Being an entrenched provision, article
49 cannot even be amended by a party with an overwhelming majority in
Parliament, unless by a referendum.

In article 63 (2) (a) and (b) the Electoral Commission has been granted
enormous powers to make by constitutional instrument regulations to
prescribe the conduct of Presidential elections including the date of the
election inter alia.

Article 65 on the other hand prescribes that the Electoral Commission shall
by constitutional instrument make regulations for the conduct of the
presidential elections generally as stated in article 63.

406
In this respect therefore, it is quite clear that the provisions in article 49
are so precise and mandatory that it requires no other meaning other than
what has been attributed therein. That is why this particular provision is
one of the few entrenched provisions.

It has been forcefully argued by all the Respondents that because the Party
agents have signed the pink sheets, and the results declared after they had
been sorted and counted in public, the complaint of the petitioners is not
well founded and must be dismissed.

Reference has already been made to the locus classicus case of Tufuor v
Attorney General [1980] GLR 637 and I think I need to refer to it here
again. See also the case of J. H. Mensah v Attorney General [1996-
97] SCGLR 320.

Sowah J.A, (as he then was) made a notable pronouncement when he

spoke on behalf of the Court of Appeal, sitting as the Supreme Court in the
Tufuor v A.G. case as follows:-

“...The decision of M r. Justice Apaloo to appear before

P arliam ent cannot m ake any difference to the interpretation
of the relevant article under consideration unless that
decision is in accordance w ith the postulates of the
Constitution. I t is indeed the propriety of the decision w hich
is under challenge. This court does not think that any act or
conduct w hich is contrary to the ex press or im plied
407
 provisions of the Constitution can be validated by equitable
doctrines of estoppel. No person can m ake law ful w hat the
Constitution says is unlaw ful. No person can m ake unlaw ful
w hat the Constitution says is law ful. The conduct m ust
conform to due process of law as laid dow n in the
fundam ental law of the land or it is unlaw ful and invalid...”
The above statement is binding on this court and I find no cogent reason
to depart from it. Besides, the Court in the Tufuor v A.G. case also
justified its statement with the following explanation which is hereby
adopted as my own words.

“Neither the Chief Justice nor any other person in authority

can clothe him self w ith conduct w hich the Constitution has
not m andated. To illustrate this point, if the Judicial Council
should w rite a letter of dism issal to a Judge of the Superior
Court of judicature and that Judge either through
m isinterpretation of the Constitution or indifference signifies
acceptance of his dism issal, can it be said that he cannot
subsequently resile from his ow n acceptance or that having
accepted his dism issal, he is stopped by conduct or election
from challenging the validity of the dism issal? This Court
certainly thinks not. The question w hether an act is
repugnant to the Constitution can only be determ ined by the
Suprem e Court. I t is that Court w hich can pronounce on the
law .”

408
And since it is to this Supreme Court that the Petitioners have come to for
the interpretation and enforcement of the breach of this article 49 (3) of
the Constitution 1992, I hold that notwithstanding the conduct of the
Petitioner’s agents in signing the pink sheets that act, cannot clothe the
unconstitutional conduct of presiding officers in not signing the pink sheets
with constitutionality.

Quite recently, the Supreme Court in two landmark decisions upheld the
supremacy of the Constitution in the hierarchy of legal norms and laws in
the legal system and stated that these principles have to be preserved and
jealously guarded.

See the unreported cases of M artin Am idu v The Attorney-General

and 2 others (a.k.a The Woyome case) S.C. No. J1/15/2012 dated 14th
June 2013 and M artin Am idu v Attorney-General and 2 others , (a.k.a
Isofoton case) S.C J1/23/2013 dated 21st July 2013.

ROLE OF PARTY AGENTS

The Respondents have in their combined responses urged this Court to

consider the position of political Party Agents endorsement of the pink
sheets and purposively interprete that part of the constitution to give
validity to the non-signing of same by the Presiding Officers.

STATEMENT OF POLL FOR THE OFFICE OF PRESIDENT OF GHANA

– FORM EL 21B AND THE DECLARATION – FORM EL22B –
REFERRED TO AS PINK SHEETS

409
An examination of the uncompleted pink sheet gives a very vivid and
clearer vision of the real intention and effect of the non-signature of a
Presiding Officer on a pink sheet.

1. Column A:- Ballot Information

The indication at the top of the column A, is to the effect that it is to be

filled in at the start of the poll. The two questions stated therein really
become relevant when this is considered in context. These are:

i. What is the number of Ballots issued to this polling station?

ii. What is the range of serial numbers of the ballot papers issued to
the polling station?
The question which any critical mind should ask before proceeding any
further with the examination of the information on the pink sheet, is to ask
who is responsible for the filling in of the questions on the pink sheet.

Undoubtedly, this is to be the sole duty of the Presiding Officer. Indeed

Regulation 17, sub-regulation (2) states the following inter alia, as the
duties of the Presiding Officer:

a. setting up the polling station;

b. taking proper custody of ballot boxes, ballot papers, biometric
verification; equipment and other materials required and used for the
poll;
c. Filling the relevant forms relating to the conduct of the poll;
d. supervising the work of the polling assistants;

410
 e. Attending to voters without identify cards;
f. Attending to proxy voters;
g. Maintaining order at the polling station;
h. Undertaking thorough counting of the votes;
i. Announcing the results of the election at the polling station, and
j. conveying ballot boxes and other election materials to the returning
officer after the poll.

On the other hand, sub-regulation 3 of Regulation 17 states that, a polling

assistant among other duties shall work under the supervision of the
Presiding Officer in charge of the polling station.

On Polling Agents, Regulation 19 sub-regulation (2) states as follows:-

“A candidate for Presidential election may appoint one Polling Agent

in every polling station nationwide.”

Sub-regulation (3) of Regulation 19 of C. I. 75 which spells out the role of

a Polling Agent of a candidate states as follows:-

“An appointment under sub-regulations (1) and (2) is for the

purpose of detecting im personation and m ultiple voting and
certifying that the poll w as conducted in accordance w ith the
law s and regulations governing the conduct of elections”.

411
Sub-regulation (4) of Regulation 19 which is also relevant states as
follows:-
“A Presiding Officer shall give a polling agent the necessary access to
enable the polling agent to observe election proceedings at a
polling station.”

In view of the provisions of Regulation 17 and 19 as referred to

supra concerning the functions and roles of a Presiding Officer
and his assistant vis-à-vis those of the Polling Agents of the
candidates, it is clear that whilst it is the duty of the Presiding
Officers to manage, control and be responsible for all activities
connected with the poll which includes the filling in of the pink
sheets, the candidates agents are merely to OBSERVE the election
proceedings at the polling station and certify at the end of the poll
that it was conducted in accordance with the laws and regulations
governing the election.

From the questions in column A, and the clear provisions of regulation 17

(2) (c) of C.I. 75, it is clear that it is only the presiding officer or in his
absence, his assistant who can fill in and answer those questions.

Column B
This is a continuation of column A, to the effect that it has to be filled in at
the start of the poll by the Presiding Officer. The questions therein stated
are:-

412
 1. What is the number of voters on the polling station register?

2. What is the number of voters on the proxy voters list?

3. What is the total number of voters eligible to vote at this

polling station? B1 plus B2

Column C

This column C to me is a very important and critical part because this is the
ballot accounting section of the pink sheets. It states at the top as follows:-

“(To be filled in at END of the poll before counting commences)”

Questions in this column are as follows:-

1. What is the number of ballots issued to voters on the polling

station register?

2. What is the number of ballots issued to voters on the Proxy Voters

List?

3. What is the number of ballots issued to voters verified by the use of

Form IC (but not by the use of BVD)?

4. What is the total number of spoilt ballots?

413
 5. What is the total number of unused ballots

6. What is the total of C1, plus C2, plus C3 plus C4? This number should
equal A1 above.

Since Form 1C was not distributed to the Polling Stations C3 was not to be
filled in.

Column D

This is significant in the sense that, whilst it is a detailed account of

rejected ballots, it also indicates that this is to be filled in at the end of poll
after counting is completed.

It should be noted that, despite all the above important questionnaire that
the Presiding Officer is expected to fill in on Form EL 21 B, which is one
half of the pink sheet, no provision is made for the signature of the
Presiding Officer to authenticate the said information provided by him on
the forms. It is also to be further noted and observed that, Forms EL 21B
and 22B have been joined together and must accordingly be read together
as one document in order for the full meaning and understanding of same
to be made.
The next item or column on the pink sheet is the Presidential Election –
Polling Station Results Form.

414
Here, the names of the candidates are in one box, with indications as to
their party or independent status in another box, then votes obtained in
figures and in words are also in different boxes.

At the end of this column are columns A , B and C for Total Valid Votes for
Column A, Total Rejected Votes from D6 above for B, Total Votes in Ballot
Box (A+B) for C.

It must again be noted that in all these, there is no indication for signature.

The Declaration is the place indicated on the pink sheet for the signatures
of the Presiding Officer and the Polling Agents of the candidates.

The words opening on this Declaration are important and is worthy to be

quoted in full. It states: “We, the undersigned, do hereby declare that the
results shown above are a true and accurate account of the ballots in this
polling station”. Immediately after this comes the Names of Presiding
Officer, His Signature, Date and Time before the names of the Polling
Agents, their party affiliation or status, signature and reasons if they
refused to sign.

The point at issue here is that, since by law, the Presiding Officer is the
Officer required and mandated by law under Regulation 17 (2) (c) of C. I.
75, to fill in the columns on the pink sheets, i.e. columns A, B, C, and D on

415
the pink sheets, as well as the results declaration, the signature of the
Presiding Officer is mandatorily and constitutionally required to
authenticate not only the results, but also the filling of the forms as
required by law.

Thus any pink sheet, which has not been signed by the Presiding
Officer lacks this crucial authentication and must be rejected as
not satisfying the requirements of the Constitution and the law.

The difference in weight between the role and functions of the Presiding
Officers and the candidates’ agents is so clear that any attempt to equate
the two, and to raise the candidates signatures to the level of the Presiding
Officer signature is not only to undermine the constitutional provisions on
this issue as enshrined in the Constitution 1992, but also crucify the
bedrock upon which the democratic foundations of the representative
Government that the people of Ghana have embarked upon since January
7th 1993. That position has been made clear in the Tufuor v A. G . case
already referred to supra.

As a consequence, I am of the very considered view that, not

having signed and authenticated the entries made by them on the
pink sheets, the non signature of same by the Presiding Officers
has invalidated the offending pink sheets, and to that extent, by
virtue of article 49 (3) of the Constitution 1992, same are
declared null and void, and of no effect. The result therefore is that all

416
votes at all the polling stations where this phenomenon of no presiding
officer signature has occurred is hereby annulled and or cancelled. If they
are annulled, then all votes attributed to any candidate at those polling
stations will be deducted from the total tally.

If however, they are cancelled then the polls will have to be re-run in those
particular polling stations.
In the opening pages of this judgment, I referred to a statement attributed
to Benjamin Cardozo a former associate Justice of the U.S. Supreme
Court in which he wrote that in deciding a case that there is no precedent
for the Judge to follow, what does he do?

In seeking to reach a decision that may become a precedent for the future,
I have to be consistent and logical in my legal reasoning.

It has been urged upon this court, that since the voters in the offending
polling stations did not commit any wrong, it will be a denial of their rights
if their votes should be annulled for the failure of a public officer in the
performance of their duties.

If the results of this category of no presiding officer signature as has been

upheld by me to be annulled, are annulled as ordered then the problem
that will arise is what criteria and number of pink sheets that are to be
affected?

417
This question is relevant in view of the mess that had been created by the
Petitioners in their use of polling station pink sheets in their analysis of the
various categories.

I am however aware that the Petitioners in volume 2B of their appendix to

their address, in their table 12 A, have a list of polling stations indicating
List of Presiding Officers signature, (Respondents preferred Data Set).

The assumption I believe is that, this list in table 12A is devoid of the many
instances of mislabeling, and use of Exhibits outside the range of exhibits
marked in the affidavit of 2nd Petitioner and also devoid of the duplications
and or triplication that some of the pink sheets of the Petitioners have
become notorious for. I also believe that all the pink sheets in this category
have been counted by KPMG and are therefore in the KPMG unique count.

Using this table 12A, the votes that are attributed to the 1st
Respondent, are 382,088 whilst those of the 1st Petitioner are
170,940. See page 497 of Volume 2B of the address. Subject
however to verification and scrutiny based on the KPMG unique
count. To prevent double use of polling station results that are to
be cancelled, care must be taken to ensure that only the residue
of the polling stations that have not been affected by over-voting
category are to be affected in this category. Since I am of the
view that, it is more equitable to cancel the results of the polling

418
stations in this category and order a re-run in only those polling
stations, I will go for that option.

What then is to be done to the Presiding Officers who failed woefully to

perform this sacred constitutional duty as is stated in article 49 (3) of the
Constitution 1992?

The resolution of this issue will involve a discussion of the Canadian case of
Opitz v W rzesnew skyi 2012 SCC 55-2012-10-25 6 to determine its
applicability. Learned Counsel for the 3rd respondents has referred this
Court to a quote in the Canadian case of Opitz just referred to supra which
states as follows:-

“The practical realities of election administration are such that

imperfections in the conduct of elections are inevitable. A federal
election is only possible with the work of thousands of Canadians
who are hired across the country for a period of a few days or, in
many cases, a single 14 hour day. These workers perform many
detailed task under difficult conditions. They are required to apply
multiple rules in a setting that is unfamiliar. Because elections are not
everyday occurrence, it is difficult to see how workers could get
practical on the job experience. The current system of electoral
administration in Canada is not designed to achieve perfection, but to
come as close to the ideal of enfranchising all entitled voters as
possible. Since the system and the Act are not designed for

419
 certainty alone, Courts cannot dem and perfect certainty.
Rather, Courts m ust be concerned w ith the integrity of the
electoral system . This overarching concern informs our
interpretation of the phrase “irregularities that affected the result”
opinions of Rothstein and Maldaver JJ

In the Ghanaian context, the Chairman of the Electoral Commission Dr.

Afari-Gyan in his evidence in chief also lamented over the fact that all the
Presiding officers and their assistants, including even the Returning
Officers, who all play very critical roles in the electoral administration are
temporary staff of the Electoral Commission.

According to him, these are recruited only some few weeks to the date of
the election and given some form of training.

My examination of some of the contentious pink sheets, which were

identified and upon which some cross-examination has been conducted
upon in court has revealed that some of the Presiding Officers appeared to
be illiterates and know next to nothing. They do not only have very bad
writing skills, but cannot express themselves in simple language and even
denote figures in words correctly. I will in this context blame the appointing
authorities of such low caliber of staff.

It is in this respect that I think the Electoral Commission Chairman, Dr.

Afari Gyan cannot escape blame. My observation is that, Dr. Afari Gyan

420
appeared to have concentrated his oversight responsibility at the top notch
of the election administration, thereby abdicating his supervisory role at
the grassroots or bottom, where most of the activities critical to the
conduct of elections are performed.

In this instance, he even appeared not to be conversant with some of the

basic procedural steps and rules that are performed by his so called
temporary staff. So far as I am concerned, Dr. Afari Gyan has cut a very
poor figure of himself, and the much acclaimed competent election
administrator both nationally and internationally has evaporated into thin
air once his portfolio has come under the close scrutiny of the Courts.

Can the Canadian Supreme Court observations be relevant and applicable

in Ghana?

Taking a cue from his testimony on the subject, and bearing in

mind the wealth of experience Dr. Afari-Gyan should have gained
since 1993, I am of the considered view that he cannot entirely
escape blame for the many infractions of the Returning Officers,
Presiding Officers and their assistants and to some extent their
printers. To that extent, I will hesitate in applying hook, line and
sinker the observations of the Canadian Court in the OP I TZ case,
bearing in mind that there was a powerful dissent in that case.

I also observe that, whilst the Presidential Election Act, 1992 PNDCL 285,
does not contain any provision of criminal sanctions on breach of election

421
duties, it’s sister Act, Representation of the People Law, 1992 PNDCL 284,
has adequate and detailed provisions stipulating criminal sanctions for
breach of all electoral regulations.

I also observe that, article 49 of the Constitution 1992 in its entirety does
not provide any sanctions for the breach of any of it’s provisions
mentioned therein.

In this respect, I will like to make reference to section 30 (a) and (f) of
PNDCL 284 referred to supra.

These sections provide as follows:

(30) An election Officer, clerk, interpreter or any other person who

has a duty to discharge, w hether under this Act or otherw ise, in
relation to an election, and who

(a) makes in a record, return or any other document, which is

required to be kept or made in pursuance of this Act or of the
Regulations, an entry which that person knows or has reasonable
cause to believe to be false, or does not believe to be true, or

(f) w ithout reasonable cause acts or fails to act in breach of

official duty,

commits an offence and is liable to a fine not exceeding five hundred

penalty units or to a term of imprisonment not exceeding two years
or both the fine and the imprisonment.”

422
I am of the opinion that, considering the fact that, the issue in contention
here is Presidential elections, there should be a higher requirement of
compliance of election officials to their duty than is required in other
instances.

I will therefore urge the application of the sanctions provided for in this
section 30 of PNDCL 284 to any breach of article 49 (3) of the Constitution.
This is because the conduct of the presiding officers in not signing the pink
sheets amounted to a failure to act in the performance of their official
duties as provided for in section 30 (a) and (e) of PNDCL 284 I will further
direct that aside the punishment of a fine and imprisonment, the 2nd
respondents should as a matter of policy blacklist all such offending
presiding officers to prevent them from ever acting for the 2nd respondents
in future. This I believe will serve as a deterrent.

Finally, I will also recommend that, henceforth, the Electoral Commission

should apply merit based criteria to the appointment of their key electoral
staff, albeit temporary to avoid the appointment of people who appear to
be crass illiterates.

To conclude this matter, I will state that even though I find the Canadian
case of OPITZ quite instructive, I am of the considered opinion that having
appprized myself of the facts of that case, it is wholly inapplicable under
the circumstances of this election petition. This is precisely because the
infractions alleged by the petitioners here are based on constitutional and
statutory violations and or irregularities, not so much on the voter not

423
being qualified to vote, or properly identified as is the case of the no
biometric identification, no vote (N.B.N.V) phenomenon.

In view of all the above discussions, I will uphold the petitioner’s claims
under the category of Presiding officers not signing the pink sheets.

DUPLICATE SERIAL NUMBERS ON PINK SHEETS

Learned counsel for the Petitioners, in his address on the above head of
claim submitted that, one of the methods by which the 2nd Respondent’s
has sought to guarantee the security of the election materials by avoiding
the substitution of election materials by unscrupulous persons who might
be determined to compromise the electoral process was to secure the
integrity of the electoral process as follows:

“One of the m eans by w hich the 2 nd respondent has over the

years sought to do this, alongside other m easures, has been
to pre-em boss electoral m aterials w ith unique serial
num bers. This is to ensure that specific electoral m aterials,
so far as possible, are used only once at every polling station
and also to detect the introduction of forged m aterials into
the electoral process. Thus, for ex am ple, the ballot papers
have serial num bers em bossed on them to ensure that each
ballot paper is unique in its identity. The series equally
ensures that ballot papers are allocated to constituencies
and polling stations in accordance w ith serial num bers
know n to the 2 nd respondent. I n the sam e w ay, in order to
424
 avoid the threat of replacem ent of official ballot box es w ith
unofficial ballot box es, the ballot box es officially used by the
2 nd respondent have em bossed on them serial num bers. Even
the tam per proof envelops, into w hich presiding officers at
polling stations put all election m aterials post announcem ent
of the results at the poll, have serial num bers in order to
enable detection of any attem pt to replace an authentic
tam per proof envelope w ith a counterfeit one. I t should be
noted that, in each of these exam ples the serial num bers
com e already em bossed on the article from the
m anufacturers/ printers. It w ould, accordingly, be
astonishing, if not self defeating, w here the prim ary record
of the election, w hich are the pink sheets, on w hich results
are declared, has no serial num ber as a security feature to
prevent substitution or forgery of such critical electoral
m aterials.”

The above statement had been re-emphasised supra in paragraph 56 of

the affidavit sworn to by the 2nd Petitioner in which reference has been
made by the Petitioner’s to 6,823 polling stations where they claimed
exclusive instances of the malpractice of same serial numbers on pink
sheets with different results took place.

It must be noted that, this category of malpractice is by far the largest

category and it was therefore not surprising that the petitioners devoted
some valuable and quality time to this phenomenon.

425
What then is the evidence in support of this? Dr. Afari-Gyan who testified
for and on behalf of the 2nd respondent admitted in his testimony the use
of some pink sheets with duplicate serial numbers. Admittedly, the
evidence given by the petitioners in their MB P – series of exhibit supports
the use of pink sheets with duplicate serial numbers.

What is the meaning of this? In effect, what this means is that, a pink
sheet, which has a number embossed on it from the printing stage
0002895 for Ghartey Hall Block “B” U.E.W polling station in the Effutu
Constituency in the Central Region will have the same corresponding serial
number on another pink sheet for another polling station in a constituency
either within the same region or another region. The evidence however
showed that this phenomenon of same serial numbers was duplicated in
different regions, not same region and constituency.

In effect, whilst the number on the pink sheets for these two polling
stations are the same, the polling station name and code are different.

However, according to the petitioners, there is an assumption that, the

numbers on the pink sheets are generated serially and so ought to be
unique to a particular polling station.

In circumstances like the above scenario that I have given, the results
attributable to each polling station as per the pink sheets are different, with
different presiding officers and party agents.

However, the Petitioners contend that as an electoral material, it must

have a unique security feature which is the number embossed on it from

426
the printing press, and once this number has been generated, it is unique
and applicable to only one polling station. They therefore contend that the
widespread use of duplicate serial numbers of pink sheets is a malpractice
for which reason results of all the polling stations in which this
phenomenon was manifested must be annulled.

In order to understand the basis of this claim, it is perhaps useful at this

stage to quote the words of Dr. Afari Gyan when he testified on 10th June
2013 as follows:-

Q. “Dr. Afari Gyan, we will go to the duplicate serial number, the alleged

duplication of serial numbers. You heard the evidence of Dr.

Bawumia the duplication of serial numbers should result in an
annulment of the votes on all polling stations where the same serial
number exists for two polling stations on the pink sheet.

A. My Lords, I strongly disagree with that.

Q. Can you tell us why?

A. Well, in the first place the serial numbers that you find on the pink

sheets are not even generated by the Electoral Commission. They are
generated by the firm or company that printed the pink sheets. Also
unlike in the case of ballot papers, where the law requires that we
print numbers, there should be a number on every ballot paper, I
have seen no reference in the Constitution or a Stature or an
I nstrum ent to a serial num ber of the pink sheet. The serial
num ber is im portant only to the ex tent that it allow s us to
427
 keep count of the num ber of pink sheets produced. The pink
sheets are distributed randomly and the serial number printed on the
pink sheet. It has absolutely no relevance to the compilation and
declaration results. We identify our polling stations by their unique
code and by their names and in fact throughout this trial so far I
have never heard anybody identify a polling station. If two polling
stations have the same serial number that will in no way affect

Q. Do you mean two pink sheets. Two pink sheets with the same

number for different polling stations, it will not have any effect
whatsoever on the validity of votes cast. Why?

A. Each of the two polling stations will have a different code and a

different name. There will be two different presiding officers and two
different sets of officials, there will be two different sets of
candidate’s agents and there will be two different results entirely. So
I see no problem , and w hen the results are taken from the
polling station to the collations center, they are dealt w ith on
the basis of polling stations codes and not serial num bers. So
I do not see the basis for the allegations surrounding the serial
numbers. I see no basis at all.”

All the respondents have denied the allegations of the petitioners on the
duplicate serial numbers with such vehemence that, the issue calls for
thorough analysis and understanding. For example, learned counsel for the
2nd respondent, James Quashie-Idun in his very brief but incisive written

428
submission stated on this duplicate serial numbers on pink sheets as
follows:

“Your Lordship, this category can properly be described as

the w eakest link in an already w eak chain”.

On his part, learned counsel for the 3rd Respondent, Tsatsu-Tsikata in his
written statement stated on this malpractice as follows:-

“I ndeed, there is no basis w hatsoever for a num ber printed

on the pink sheet w hich w as not generated by the Electoral
Com m ission and w hich w as not know n to the political parties
as a distinguishing m ark of polling stations, to be used
retroactively to disenfranchise m illions of innocent voters.”

Even though I am not comfortable with the explanations of Dr. Afari-Gyan,

in his evidence on the duplicate serial numbers as has been reproduced
verbatim, the petitioners have to my mind not discharged the burden of
proof that lies upon them in such cases as has been stated supra.

I have previously quoted in extenso, the written statement of learned

counsel for the petitioners Philip Addison on this point, wherein he asserts
strongly that it should be desirable that pink sheets with specific numbers
should be assigned to specific polling stations as is done with codes and
ballot papers.

It would have been quite easy for me to accede to the contention

of the petitioners if they had led evidence to establish that, in the
past elections, or at least the last 2008 presidential elections, all

429
“pink sheets” had serial numbers embossed on them which were
assigned specifically to particular polling stations. In that respect,
there would have been an established practice that, the number
embossed on the “pink sheets” is assigned to a polling station just
as a polling station code is assigned using a regional alphabet
followed by the numbers, i.e. constituency identification number,
and the unique polling station number which all make up the
unique code.

No evidence whatsoever on this matter has been led by the petitioners, to

establish such a practice. In circumstances where the petitioner’s have
failed with any degree of certainty to establish that, it had been the
practice of the Electoral Commission to assign the numbers on the pink
sheets to polling stations making them a unique feature, the case of the
petitioner’s must fail in this respect.

For now, what has been established as the practice in our electoral process
and administration is that, the following are the security checks and
features that are attributable to a polling station and by which it is known.

1. Name – though this may be similar e.g. E.P. Primary School or C.M.B
Shed, Finger of God etc.

2. Unique Polling Station Code – by which the region, constituency

and polling station are clearly identified making it really unique.

430
 3. Ballot papers – the serial numbers on the ballot papers are unique to
a polling station in the sense that, no two polling stations can have
and use the same ballot papers with same serial numbers.

REFORMS
The importance of the Statement of Poll and Declaration of Results forms,
“pink sheets” has informed me to suggest a number of reforms in our
electoral process, including better management of the “serial “ numbers
on these pink sheets.

It really does not make sense for the Electoral Commission Chairman, Dr.
Afari Gyan to state that it is the printers who generate the numbers on the
pink sheets in order for them to keep count of the number of pink sheets
they have printed. This is not only absurd but also exposes the Electoral
Commission as lacking any control mechanism to really check the actual
number of pink sheets delivered to them.

For example, if a printer generates his own numbers from say 0000001 and
goes on to 9,000,000, whilst in actual fact, the physical count is less than
the quantity the Electoral Commission paid for, then the Electoral
Commission would have been short changed.

Dr. Afari Gyan to me, was not convincing on this point at all, just as he was
on many other issues. But for the weakness in the petitioners case on this
issue, I would have dismissed the Electoral Commission’s explanation as
not being reasonable.
431
It is for this and other reasons stated in this judgment that I am of the
view that there are indeed urgent reforms needed in our electoral process
and administration.

In the first place, it does appear to me that there is the need for the I nter
P arty Advisory Com m ittee (I P AC) to consider legislation to legitimise
the use of serialized pink sheets in just the same way as there are unique
polling station codes. Does it not matter that, the pink sheets, which form
the primary documents upon which election results are declared by the
Electoral Commission are not serialized to prevent their multiple use and
abuse as was apparent in some few cases in the December 2012
Presidential elections?

In order to give validity and raise our elections to a higher pedestal, I think
it will not be a bad idea if IPAC and indeed the entire country will consider
proposals aimed at legislation to ensure that, security features are
enhanced on the pink sheets, to make them identifiable to a particular
region, constituency and polling station just as it is with the polling station
codes.
Even though the above suggestion is likely to be a strain and an
added burden on the Electoral Commission, it is better to put such
a stringent requirement on them, than to live with the type of
mess that was created by the lack of control in the printing,
marking, distribution and use of the pink sheets.

432
Secondly, since the Electoral Commission Chair, who is the returning
officer for the presidential elections was not present at the polling stations
and could in any case not be present thereby lending credence to the 2nd
petitioners oft quoted statement of “You and I were not there” a lot of
caution and circumspection ought to be exercised in anything that has to
do with reliance on entries on the pink sheets.

This is because, if the pink sheets for now remain the only authentic,
valuable and credible document upon which the results are declared, then
everything has to be done to ensure their sanctity, credibility and
legitimacy. Situations, such as those recounted by Dr. Afari-Gyan about
how pink sheets for the December 2012 elections were ordered, printed
and distributed are so bizarre that it could have been a recipe for disaster.
Urgent steps should therefore be taken to reform the electoral landscape
promptly to ensure a clean, fair and a level playing ground.

I am making these suggestions against the background of the explanation

given by Dr. Afari Gyan as the basis for the printing of two (2) sets of pink
sheets. Even though the reasons are not credible and lack candour, the
claims of the petitioners about the widespread use of the duplicate serial
numbers category to perpetuate most of the malpractices and violations
have not been well made out.

433
For instance, if it is because of the late settlement of the issue of the
actual number of contesting presidential candidates that led to the printing
of the two sets of pink sheets thereby accounting for the duplications, then
only one set could have been used, since the other set of candidates never
had the green light. Besides, the names of the candidates on the first set
of printed pink sheets, is the same as the second set. This therefore has
exposed the Electoral Commission as not being candid in their explanation.

It is possible that something sinister could have been the basis

behind the printing of the two sets of pink sheets. But since a
court of law such as this Supreme Court does not deal with
speculation and conjecture in a serious and volatile matter as
disputed presidential election results, it is better to err on the side
of caution than to yield to assertions which have not passed the
litmus test of proof on the balance of probabilities as has been
discussed elsewhere.

My concluding remarks on this matter of duplicate serial numbers

on the pink sheets is that, once the petitioners have failed to
prove the existence of an established practice in the use of
assigned specific serial number on pink sheets to poling stations
in past presidential elections and their further inability to also
prove that these resulted into the massive malpractices they
alleged in this category save for the isolated instances, mentioned

434
supra, I reject the invitation being made to this court to annul
votes in this category. It is accordingly rejected.

SAME POLLING STATION CODE RESULT ON DIFFERENT PINK

SHEETS

The petitioners have based their contention on the malpractice of same

polling station code results on different pink sheets on Table 14 in volume
2B of their address.

The petitioners rely also on the testimony of Dr. Afari-Gyan when he said in
court on 30th May 2013 as follows:-

“The code is unique; first in the sense that no tw o polling

stations ever have the sam e num ber or code. I t is also
unique in the sense that the code is consciously crafted to
contain inform ation that directs you to the location of the
polling station. And the system w e use is alpha-num eric; that
is to say, it com bines the letters of the alphabets and
num bers; and the system is a letter follow ed by 6 digits and
it m ay end or m ay not end w ith another letter.”

As I have started supra, there is incontrovertible evidence that polling

station codes are unique to each polling station and the occurrence of

435
multiple results as per pink sheets in some few polling stations can indeed
only be the work of the “Hand of God”.

In this respect, the petitioners tendered a number of exhibits through Dr.

Afari-Gyan and I will refer in this instance to exhibits S and Y just to
mention and rely on a few.

It is also interesting to observe that, Dr. Afari-Gyan was emphatic during

his testimony that no one polling station should have more than one pink
sheets. In answer to a question, Dr. Afari-Gyan put it bluntly as follows:-

“I am saying that no polling station should have tw o pink

sheets.”

The petitioners do not accept the explanation of the Electoral Commission

Chair that this discrepancy may have occurred as a result of special voting
having taken place at those polling stations thereby explaining the
occurrence of the two pink sheets, or the splitting up of the polling station
into two due to its size.

This court in order to do justice will have to give meaning and content to
Regulation 21, sub regulation 11 of the Public Elections Regulations, 2012
(C. I. 75) which deals with special voting procedures and other matters. It
provides thus:-
“The returning officer shall at the end of the special voting

436
 a. Ensure that the ballot box es are kept in safe custody after
the poll has closed.

b. Ensure that the ballot box es are sealed w ith the seals of the
com m ission and candidates w ho w ish to add their seal; and

c. Arrange for the ballot box es to be opened at the tim e of the

counting of the votes cast on the polling day and the ballot
papers shall be counted in the sam e m anner as those
contained in the ballot box es used on the polling day.”

Regulations 35 (7) and 36 (1) (2) and (3) of C.I. 75, deals with the manner
in which the votes are counted at a polling station in any general election.
The votes in a special voting are also to follow the same pattern stated in
the C. I. 75 referred to supra.

It should be noted that, after the sorting out of the ballots into valid and
rejected categories, the votes are then counted and the votes obtained by
each candidate are registered against their names and rejected ballots are
also recorded after which the results are announced.

I believe this is the procedure that the counting of the special voting is to
follow. If that is the case, then there must be an indication by which the
special voting is to be indicated to denote it separately from the general
voting.

437
The address of learned counsel for the 2nd Respondent, Mr. Quashie-Idun
on this issue is very terse. As stated earlier, it deals with the issue of
special voting and split polling stations.

The evidence also unfolded that where polling stations are split, they are
denoted as A & B. However, in the Table 14, which the petitioners have
attached to their address, this distinction is not well made out. For
example, L/ A Prim ary School M am e Krobo East A , which are
numbers 5 and 6 on the Table 14, all have one polling station code
number E. 261001A in all the two instances with no indication
that it is a split polling station. The same phenomenon is exhibited in
respect of St. Emmanuel Nursery/Primary School Zenu indicated in
numbers 9 and 10 on the Table and there is no indication that it is a split
polling station.

Then there is the infamous Juaso Court Hall indicated in numbers 11 and
12 and the Finger of God which has really turned into the “Hand of God”
features prominently in numbers 20 and 21 all in Table 14 but most of
these stations had been deleted in Exhibit Y.

My understanding and appreciation of the above analysis is that, there was

indeed no indication whatsoever as to whether the polling stations were
used as a split polling station in which case I presume they ought to be
identified as A & B to prevent confusion.

438
This conclusion is irrespective of the submission of other learned counsel
for the 1st and 3rd Respondents who all base their positions on the
testimony of Dr. Afari-Gyan on the splitting of large polling stations and use
of the polling stations for special voting.

In the absence of clear proof that the duplicated polling station codes with
different pink sheets results have either been used for special voting or
split into two, I am inclined to accept the petitioners’ claims that the 2nd
respondent used the said phenomenon in clear violation of accepted
practice in electoral process and as spelt out in C.I. 75. However, if one
considers the deletion of certain polling stations from this category as is
evident from Exhibit Y, which is headed Duplicate Polling Station Codes,
where these pairs of numbers 3, 4, 7, 8, 11 and 12 are deleted then the
basis of the claims has somehow been eroded. In this respect, the
petitioners themselves had deleted 2 polling stations each of Juaso Court
Hall, Finger of God Church, Kubekro B and Kalpohin S.H.S A.
There is also the observation that some of the remaining polling stations on
Exhibit Y have already been captured in the no Presiding Officer category.
To prevent double count, I will not give any further consideration to this
category.

439
UNKNOWN POLLING STATIONS

Ground 2 (a) of the petition is to the effect that presidential elections were
conducted in 22 locations which did not form part of the 26,002 polling
stations created by the 2nd respondent for purposes of the December, 2012
elections.

The 2nd petitioner was however candid in his evidence that a polling station
apart from its name is also identified by the unique code which is special to
the polling station. Nonetheless, the petitioners contend that elections were
held in these 22 locations by the 2nd Respondent in the December 2012
elections outside the official list of the 26,002 polling stations designated
by the 2nd respondent contrary to C. I. 75. The petitioners rely on a list
prepared by them in Table 15 of volume 2B of their address to this court.

I have tried to examine whether this list of 22 locations is additional to the

26,002 or is part of the 26,002 but only that they are not known to the
petitioners as per the list supplied them by the 2nd respondent. My
examination has revealed that the 22 locations form part of the 26,002
designated polling stations.

The 2nd respondent’s argued very forcefully that, because the petitioners
sent agents to those 22 “unknown” polling stations, they should be
stopped from questioning their lawful existence.

440
The 1st and 3rd respondents responded to this head of claim by relying on
exhibit EC3 which is a letter signed by the 1st petitioner among others
tendered by the 2nd respondent that party agents were indeed appointed
by the petitioners to those 22 locations.

In view of the serious doubts that have been cast on the authenticity of
those exhibits 1 will not rely on them.

It will be recalled that, on 15th April 2013 Johnson Asiedu Nketia, the
General Secretary of the National Democratic Congress, who testified on
behalf of the 1st and 3rd respondents, swore to an affidavit which is quite
revealing. In substance, the depositions contained in paragraphs 15F,
under the heading UNKNOW N P OLLI NG STATI ONS (i) (ii) and (iii)
show clearly that the basis of the petitioners claims under this category has
not been well founded or grounded.

In essence, what the depositions, together with an exhibit “JAN 5” which

was attached, contained details of the constituencies with the variations in
their names and mistakes in mislabeling which positively depict that the
petitioners have no case. Out of abundance of caution, it is useful to
reproduce the relevant portions of the said affidavit referred to supra in
extenso for the full force and effect of the conclusion reached that this
head of claim ought to be dismissed.

(i) “I was in court when the counsel for the petitioners indicated that

441
 they were restricting this allegation to the 22 polling stations they
identified on the basis of the orders of the court to supply further and
better particulars. Counsel for the petitioners confirmed they no
longer were making claims in respect of 28 polling stations as they
originally alleged. The affidavit of 2nd Petitioner now refers to 23
polling stations meaning there is one polling station in respect of
which further and better particulars have not been supplied as
ordered by the Court.

(ii) We have also checked the details of the polling stations

provided by the petitioners, and have found that their confusion
arose, in som e instances, out of the w rong spelling of the
nam es of the polling stations and, in others, they m isquoted
the polling station codes. I n som e cases, the polling stations
w ere used for special voting. All the polling stations ex ist
and w ere part of the 26,002 polling stations that w ere
created by the 2 nd Respondent for the conduct of the
Decem ber 2012 elections. Anyhow , the pink sheets ex hibited
by the petitioners in respect thereto reflect the genuine
results of supervised election signed by the P etitioners and
1 st R espondent’s polling/ counting agents

(iii) I attached to this affidavit, marked exhibit “JAN 5” an analysis of the

details relating to the Petitioners’ allegation. The 2nd and 3rd columns
show the details provided by the petitioners in their allegation. The

442
 4th and 5th columns show the correct details of the polling stations.
The 6th column shows the constituencies under which the polling
stations falls.”

I have looked at Table 15, prepared by the petitioners as an explanation to

their address in Volume 2B. I have compared the polling station codes in
that Table 15 with the particulars contained in the affidavit of Asiedu
Nketia sworn to on 15th April 2013 already referred to with the Exhibit JAN
5 and I am satisfied that the polling station codes are the same for all the
22 locations.

In respect of some of the names, there are some similarities. I am

therefore unable to accede to the request of the petitioners to annul results
in this category. This claim by the petitioners is accordingly dismissed.

OTHER ALLEGATIONS ABANDONED BY PETITIONERS

Since the petitioners have evinced a clear intention not to proceed with the
allegations of padding and reduction of votes save in one polling station as
well as the allegations on STL issue, no time whatsoever will be spent in
dealing with these.

BLOATED VOTERS REGISTER

There is no doubt, that the Petitioners claim of a bloated voters register

has been admitted by the 2nd respondents in paragraph 8 of their second
amended answer.
443
The explanation for this phenomenon has been attributed to error.
Explaining further, the 2nd respondent stated that this error resulted in the
figure of 14,158,890 instead of 14,031,793 being announced as the total
registered voters who turned out for the 7th and 8th December 2012
presidential elections.

They however state that the error would only affect the turn out
percentage and change the percentage from 79.43% to 80.15%.

The error effect is really very negligible and but for the credibility effect it
has on the 2nd respondent’s as an electoral administrator I will not give it
any serious thought.

However, if I consider the effects of Exhibits U and V, which are final

voters register for Adaklu constituency, polling station code number
D090201, (Adaklu Torda in the Volta Region) and for Afadjato-South
constituency, polling station code number D170901, E. P primary school
respectively, then the fine attributes of the biometric registration as the
panacea to the double and or multiple registration is a far cry from being
over.

Refer also to instances of double registration which occurred in the

registration of prospective voters conducted outside the country for those
working in Foreign Missions, International Organisations and those
studying abroad.

444
However, since the effect of these infractions in the registration exercise
has not been proven to have had any effect on the final outcome of the
election, I will dismiss them, as I hereby do.

CONCLUDING REMARKS

This Court has set down two issues in the memorandum of issues it had
settled for the parties. These are as follows:-

i. Whether there were violations, omissions, malpractices and

irregularities
of the Presidential election held on 7th and 8th December 2012 and

ii. Whether or not the said violations, omissions, malpractices and

irregularities, if any affected the outcome of the results of the
elections.

Having reviewed the entire pleadings and the evidence in this case, there is
absolutely no doubt in my mind that there have been some violations,
omissions, malpractices and irregularities of the Presidential elections held
on the 7th and 8th December 2012.

What must be noted is that, even though these infractions were not proven
to have been orchestrated by either the 1st or 3rd Respondents, but by the
agents of the 2nd respondents, once they are infractions which have been
established in some instances, I will uphold them. This is pursuant to

445
powers conferred on this Court under article 64 (1) and (2) of the
Constitution, 1992.

The resolution of the second issue is somewhat difficult to resolve. This is

because, it has to be determined whether these violations, omissions etc,
affected the outcome of the results.

In a vast majority of the categories, I can conclusively say that they have
had no effect on the outcome of the elections whatsoever. However, when
cumulatively put together, the said violations may affect the outcome of
the elections.

My decision on the

i. Duplicate Serial numbers;

ii. Voting without biometric verification; and

iii. Unknown polling station categories;

iv. Duplicate polling station results

is that I reject those claims outright and no consequence arises. They are
therefore dismissed.

446
However, since I have upheld in its entirety the “No presiding officer
signature category”, albeit with a different and much reduced set of pink
sheets, I must admit these may affect the outcome of the results of the
presidential elections. See Table 12A of Volume 2B of petitioners address
referred to above and my conclusion on this category as stated in the main
body of the judgment.

The petitioner’s relief one will therefore be granted in respect of the No

P residing Officer Signature Category in terms of my decision as is
contained in the main body of the judgment.

Similarly, the petitioners would be deemed to be successful in respect of

their relief one in the over-voting category in terms as shall be determined
using the road map as indicated in the main body of the judgment during
the audit of the affected pink sheets.

Relief two is however accordingly dismissed. In respect of relief three, and

in view of my decision in the over voting and no presiding officer signature
category, and subject also to the total tally of votes in these two
categories that the audit shall disclose, where the total tally of votes in the
said category, reduce the total votes attributed to the 1st Respondent to fall
below the 50% plus one percentage, then in that case in line with
constitutional provisions in article 63 (3) I will direct that there should be a
re-run of the presidential elections in only the affected polling stations
between the 1st Petitioner and 1st Respondent.

Subject to the above decision, the petitioners claims stand dismissed.

447
To me the lessons in all these for the 2nd respondent’s as an institution is
very important. As an electoral administration body, the 2nd respondent’s
and I dare say the political parties who are major stakeholders have a duty
to review our entire electoral system with particular reference to entries on
the pink sheets. This has become very critical in view of the many errors,
that have become a routine feature of the pink sheets.

If it is understood that, these pink sheets are the documents that

are used to declare the results if no objections are raised, then the
method of recruitment, training and general orientation of the
staff that fill those forms at the polling stations, be they
temporary or permanent engaged in performing critical core
functions on election day has to be revised.

Similarly, I will also appeal to the political parties or candidates to ensure

that those persons they engage as agents to observe the elections at the
polling stations are not only loyal and dedicated party persons, but persons
who are competent enough to understand the implications of the
recordings on the pink sheets and the sequential nature of the said
recordings.

I will also take this opportunity to congratulate the parties and their
Counsel for their conduct and assistance to the Court. This was despite the
fact that, even though tension was initially very high with loss of

448
confidence and trust among the Lawyers, with the passage of time, those
barriers were removed and the case progressed apace to its conclusion.

Today’s judgment is a victory I believe once again for Ghana’s democratic

credentials, to wit, the rule of law and our pursuit of governance related
issues. Let me therefore conclude this judgment with my favorite childhood
poem of Lord Alfred Tennyson “THE BROOK”.

“I am sometimes really amazed at whether Lord Tennyson had in his

mind rivers and streams like the Volta, Dayi, Tordze or Onyasia when
he wrote “The Brook” which I believe many people were made to
memorise in their basic school.

Since I find the words therein very apt and useful for the closing
pages of this judgment, I have decided to use them by adopting it to
our local situation.

I come from haunts of coot and hern,

I make a sudden sally
And sparkle out among the fern,
To bicker down a valley.
By thirty hills I hurry down,
Or slip between the ridges,
By twenty thorps, a little town,
And half a hundred bridges…

449
The little town might well be Accra.

I chatter over stony ways,

In little sharps and trebles,
I bubble into eddying bays,
I babble on the pebbles.

With many a curve my banks I fret

By many a field and fallow,
And many a fairy foreland set
With willow-weed and mallow.

I chatter, charter, as I flow

To join the brimming river,
For men may come and men may go,
But I go on ever.

And I add, for NPP and NDC may come and go, but Ghana goes on
forever as a country.

I wind about, and in and out,

With here a blossom sailing
And here and there a lusty trout
And here and there a grayling,

450
And if I may substitute Tilapia for the trout that will be more
meaningful

And here and there a foamy-flake

Upon me, as I travel
With many a silvery waterbreak
Above the golden gravel,

And draw them all along, and flow

To join the brimming river,
For men may come and men may go,
But I go on for ever.

And I add that individual political giants may come and go,
but we as citizens of Ghana continue with our lives

I steal by lawns and grassy plot,

I slide by hazel covers;
I move the sweet forget-me-nots
That grow for happy lovers.

I slip, I slide, I groom, I glance,

Among my skimming swallows;
I make the netted sunbean dance
Against my sandy shallows.

451
 I murmur under moon and stars
In brambly wildernesses;
I linger by my shingly bars;
I loiter round my cresses;
And out again I curve and flow
To join the brimming river,
For men may come and men may go,
But I go on for ever.

And I add that as Nkrumah, Busia, Limann, Rawlings,

Kufuor and Mills have all come and gone, but we as
Ghanaians will go on forever

It is a happy thought that the brook in our context, the Volta goes on
for ever: but we come and go.”

In this respect, I will liken the river in the poem to the Volta and other
rivers and streams mentioned supra. The Volta flows from the North by
different tributaries until it is dammed at Akosombo.

Thereafter it flows swiftly through to another Dam at Kpong and flows

thereafter through the turbines to the dry savanna lands through Adidome,
Sogakope until it enters into the sea at the estuary at Ada.

452
Is it not a joy to realise that whilst the Volta flows into the sea every
second and in the process loses its identity, the phenomenon of its flowing
down through its tributaries in to the sea goes on forever.

I will therefore entreat all my countrymen and women to bear this happy
thought about the brook, which goes on forever, but we the players, i.e.
those of us who benefit from the brook we come and go. Life must
definitely continue to go on forever despite the reverses we suffer one way
or the other.

GOD BLESS GHANA.

(SGD) J. V. M. DOTSE

JUSTICE OF THE SUPREME COURT

453
ANI N YEBOAH, J.S.C

The petitioners herein by an amended petition dated the

8/02/2013 claimed the following declaratory reliefs:

i. A declaration that John Dramani Mahama, the 2nd

Respondent herein was not validly elected president of the
Republic of Ghana.

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

iii. Consequential orders as to this court may seem meet.

The facts of this matter appear not to be in any serious

controversy as the events culminating to this petition were not
disputed by the parties herein.

THE FACTS:

Ghana went to polls to elect a president on the 7th and 8th

December 2012. The presidential election was constested by
eight candidates. The first petitioner herein Nana Addo Dankwa
Akufo-Addo was the candidate for the New Patriotic Party
whereas the first respondent His Excellency John Dramani
Mahama was the candidate for the National Democratic
Congress. The second respondent herein who under Article 45 of
the Constitution is the sole constitutional body charged to

454
conduct elections declared the first respondent herein as winner
of the presidential election. The first respondent obtained 5,571,761 votes
representing 50.7% of the valid votes cast thereby satisfying the
constitutional requirement under Article 63(3) of the Constitution. The first
petitioner obtained 5,248,898 votes representing 47.74% of the valid votes
cast. The contestants obtained votes as follows:
(1) John Dramani Mahama --5,574,761 50.70%

(2) Dr.Henry Herbert Lartey --88,223 0.35%

(3) Nana Addo Dankwa Akufo-Addo --5,248,898 47.74%

(4) Dr Papa Kwesi Nduom --64,362 0.59%

(5) Akwai Addai Odike --8,877 0.08%

(6) Hassan Ayariga --24,617 0.22%

(7) Dr.Michael Abu Sakara Forster --20,323 0.18%

(8) Jacob Osei Yeboah --15,201 0.14%

--------------------------- ------------

10,995,262 100%
---------------------------- ------------

Pursuant to the declaration of the results by the second respondent that the
first respondent had obtained 50.7% of the valid votes cast, the petitioners
invoked our jurisdiction under Article 64(1) of the Constitution by this
455
petition challenging the validity of the election of the first respondent on
several grounds captured in the petition. Some of the grounds were, over-
voting, lack of signatures on the declaration forms by the presiding officers,
lack of biometric verification of voters, and duplicate serial numbers,
unknown polling stations and duplicate polling station code.

The respondents resisted the allegations of electoral improprieties

catalogued by the petitioners by stoutly denying all the
allegations of improprieties leveled against the second
respondent. Reading the answer of the second respondent to the
petition, it became clear that the second respondent never
admitted any of the irregularities or electoral improprieties
leveled against it and maintained throughout that the election
was conducted fairly and devoid of any such lapses as contended
by the petitioners. The answers of the other respondents were
supportive of the line of defence of the second respondents.

It must be pointed out for a fuller record in such a monumental

case that this petition was initially against the first two
respondents. The third respondent, however, successfully applied
for and obtained an order for joinder making them the third
respondent to this petition. Pursuant to the order for joinder, the
third respondent proceeded to lodge its answer to the petition.

456
Several interlocutory applications were made to us in course of
the proceedings (apart from the other for joinder) in the form of
further and better particulars, interrogatories, production and
inspection of documents etc. These interlocutory applications in
my view narrowed the scope of the trial.

At the applications for directions stage, the parties raised

several issues for the court to determine. However, this court
mindful of the pleadings and the nature of the reliefs sought
`imposed' only two issues on the parties for determination of
this petition. These issues were couched as follows:

i. Whether or not there were violations, omissions, malpractices

and irregularities in the conduct of the presidential elections
held on 7th and 8th of December 2012; and

ii. Whether or not such violations, omissions, malpractices

and irregularities, if any, affected the outcome of the
said election.

At the application for directions stage, parties were directed to

file affidavits and annexed any relevant evidence they intended
to rely on during the trial within a specified time frame. It was
also ordered that irrespective of the fact that the court had
ordered filing of affidavits, parties were at liberty to give
evidence through their representatives. All the parties gave

457
evidence through their representatives and several exhibits were
tendered through them.

BURDEN OF PROOF:

Under the Evidence Act, NRCD 323 of 1975 a party who bears the
onus of proof has, an obligation to establish a requisite degree of
belief concerning a fact in the mind of the tribunal of fact or the
court.

According to Thayer in Preliminary Treatise on Evidence at The Common

Law page 355, the nature of the burden is as follows:

"The peculiar duty of him who has the risk of any given
proposition on which parties are at issue - who will lose the case
if he does not make this proposition out, when all has been said
and done".

It has been urged on this court that the evidential burden has not been
discharged by the petitioners. Writing on this topic, Professor Rupert Cross
in his invaluable book: Cross and Tapper on Evidence, 12th Edition states
at page 122 as follows:

"An evidential burden is not a burden of proof. It determines

whether an issue should be left to the trier of fact, while the
persuasive burden determines how the issue should be
decided".

458
In this petition, however, the burden of proof is squarely on the petitioners.
In an election in which results were officially published, the results must be
deemed as correct and any person challenging same ought to prove that it
wasn't so. Another point worthy of mentioning is that, the second
respondent, which is the only statutory body constitutionally charged to
conduct such elections in its official capacity must be presumed to have
regularly performed its official functions as it did in this case. This common
law position is statutorily supported by section 37(1) of the Evidence Act,
NRCD 323 of 1975. The presumption of regularity therefore holds in favour
of the second respondent.

Another common law principle to guide jurists in ascertaining which party

bears the burden of proof is this: which of the parties will lose if no
evidence is called. From the nature of the reliefs sought and the pleadings
in this case the petitioners will lose if no evidence is called. Under section
17(1) of the Evidence Act NRCD 323 of 1975, the petitioners obviously
bear the burden of producing evidence to establish that the election was
fraught with the irregularities they complained of. Applying basic common
law principles and the Evidence Act, it appears that the burden of proof is
squarely on the petitioners. This was indeed acknowledged by the
petitioners in their written address submitted to the court at the close of the
case.

STANDARD OF PROOF:

The petition is simply a civil case by which petitioners are seeking to

challenge the validity of the presidential elections. From the pleadings and
the evidence, no allegations of fraud or criminality were ever introduced by

459
the petitioners. The standard of proof of allegations in civil cases is proof
by preponderance of probabilities. It is only when crime is pleaded or
raised in the evidence that the allegation sought to be proved must be
proved beyond reasonable doubt. See ARYEH & AKAKPO v AYAA
IDDRISU (2010) SCGLR 891 and FENUKU v JOHN TEYE (2001-2002)
SCGLR 985. The fact that this petition is brought under Article 64 of the
1992 Constitution does not make any difference in the applicability of
the standard of proof. The allegations in the petition that were
denied by the respondents in their answers to the petition ought
to be proved as required in every case. The fact that the petition
is a constitutional matter is also entirely irrelevant. The standard
of proof in all civil cases is the usual standard of proof by
preponderance of probabilities and no more.

From the various written submissions on record, none of the

parties has raised any question or issue as to any higher standard
of proof required to be applied in a purely civil litigation of this
nature.

THE EVIDENCE

The second petitioner's evidence followed the order for filing of

further and better particulars of the petition. In lengthy evidence
covering several days in the witness-box, the second petitioner
was subjected to rigorous and far-ranging cross-examination by
all the counsel for the respondents. His evidence, however,
touched on virtually all the irregularities or violations leveled

460
against the second respondent. It must be pointed out at this
stage of this delivery that from the pleadings no allegations of
electoral improprieties or irregularities were made against the
first and third respondents herein. It does appear that the
presence of the first respondent is simply based on the fact that
he was the sole beneficiary of the allegations of electoral
irregularities and improprieties leveled against the second
respondent.

The petitioners, pursuant to an order of this court filed several Statements

of Poll for the Office of President of Ghana which shall be referred to in this
delivery as Pink Sheets for the polling stations which results appeared to
be in controversy. In course of the evidence of the second petitioner it
became clear that the number of pink sheets filed was in doubt. It is part of
the official records of this petition that learned counsel for the first
respondent wrote to the Registrar to demand extra pink sheets which he
claimed had not been served on him. Learned counsel for the third
respondent made similar complaints of not having been served with the
exact number of the pink sheets allegedly filed by the petitioners in support
of their case. This controversy also affected the second petitioner. In his
evidence, the second petitioner said on oath that by his affidavit they were
to lead evidence to cover 11,842 polling stations, but ended up with 11,221
polling stations. This did not end there as according to him 83 polling
stations were later deleted to reduce the number of polling stations to 1
1,138. The second petitioner, however, ended up saying that the petitioners
were relying on 11,842 pink sheets. This was in his evidence under cross-
examination on 9/05/2013.

461
As the confusion raged on about the figures, this court made an order for
the appointment of official referee to count the total number of pink sheets
filed by the petitioners. The referee, KPMG came out with the figure of
8,675 as the total number of polling stations that were uniquely identified in
course of the counting of the pink sheets. Upon filing its report to the court,
the official referee gave evidence through its representative. It turned out
during cross-examination of the official referee's representative, one Nii
Amanor Doodo that the total number of 13,926 were exhibits that they
counted and out of that 1,545 were not eligible so that reduced the number
to 12,381.Out of this number the exhibit numbers appearing once came up
to 9,504 and the polling station codes also appearing once came up to
5,470.

I must confess that I was very uncomfortable with the way and manner this
highest court of the land was left unassisted by the second respondent in
whose custody the original pink sheets are kept. It appeared from the
reports of the official referee that as many as 1,545 of the pink sheets
supplied by the petitioners as filed exhibits were not legible. In a serious
matter in which the mandate of the entire voters of this country is being
questioned through a judicial process one expected the second respondent
as the sole body responsible for the conducting of elections to have
exhibited utmost degree of candour to assist the court in arriving at the
truth. Surprisingly, the second respondent opted for filing no pink sheets
leaving this court unassisted and thereby placing reliance only on the pink
sheets supplied to the agents of the petitioners at the various polling
stations in issue. Why the second respondent elected to deny a court of law
in search of the truth in a monumental case of this nature is beyond my

462
comprehension. I think this must be deprecated in view of its constitutional
autonomy granted to it to perform such vital functions under the constitution
for the advancement of our democratic governance. The second
respondent strongly resisted an Application to produce Documents for
inspection filed by the petitioners The Results Collation Form which are in
the exclusive custody of the second respondents were never exhibited,
indeed not a single constituency collation form was before the court This
court was thus left to consider only the pink sheets supplied by the
petitioners which were copies of the original.

Section 163(1) of the Evidence Act NRCD 323 offers some assistance in
relying on the pink sheets which were supplied to the petitioners by the
second respondent's agents at the various polling stations affected by
the petitioner. The section states as follows;

"An "original" of a writing is the writing itself or any copy

intended to have the same effect by the person or persons
executing or is issuing it"

This definition of " original" above , takes care of section 165 of the Act
which states as follows:

"165. Except as otherwise provided by this decree or any other

enactment, no evidence other than an original writing is
admissible to prove the content of writing"

From the evidence led there was no quarrel with the exhibits in the form of
pink sheets provided by the petitioners as regards their admissibility. To
go further, section 166 of the same Act provides as follows:
463
 "166 A duplicate of a writing is admissible to the same extent as
an original of that, unless

A genuine question is raised as to the authenticity of the original

or the duplicate; or

In the circumstances it would be unfair to admit the duplicate in

lieu of the original"

I have said earlier that the respondents, especially the second respondent
who gave only copies of the pink sheets of the various polling stations did
not doubt the authenticity of the any of the pink sheets. As it was given only
in the normal official business of the second respondent, a strong
presumption is raised as to its authenticity under section 37(l) of the
Evidence Act.

I have taken time to discuss the admissibility of the pink sheets under the
laws as it stands now for the simple reason that the pink sheets appear to
be the only evidence which emanated from the various polling stations
which are in controversy before this court. As pointed out earlier, none of
the three respondents ever, even faintly, doubted the authenticity of any of
the pink sheets. On record copies of same had been served on parties
pursuant to the applications for directions before the second petitioner gave
evidence on oath. In the absence of any allegations challenging any of the
pink sheets I find as a fact that they clearly represented the official records
of whatever took place at the various polling stations throughout the
country with particular reference to the areas in controversy. The
presumption of its regularity and authenticity are clear. Throughout the

464
proceedings the court, the parties and the official referee appointed by the
court relied on the various pink sheets as representing the official records
of the polling stations. It may be argued for judicial purpose that the pink
sheets only raise a rebuttable presumption in favour of those who tendered
them, that is, the petitioners. Assuming that it was so no evidence, contrary
to and inconsistent with what appeared on the pink sheets was led to rebut
any presumption of regularity and authenticity. In any case, on the
authorities of YORKWA v DUAH (1992-93) GBR 278 CA and FOSUA &
ADU POKU v ADU POKU MENSAH (2009) SCGLR 1, the court have
established the principle of law to the effect that `wherever there was in
existence a written document and oral evidence over a transaction, the
time-honored principle is that the court was to lean favourably towards the
documentary evidence, especially if it was authentic and the oral evidence
conflicting'.

In my respectful opinion, save the pink sheet that fell into the category of
over-voting, no attempt was made by second and indeed, other
respondents for that matter, to rebut the presumption raised in favour of
the petitioners. The details of their evidence would be addressed
later in this delivery.

In the petition, the further and better particulars supplied by the

petitioners and the evidence catalogued the alleged irregularities,

465
malpractices and violations into six categories. It would, in my
opinion for the sake of clarity be appropriate to refer to them in
detail:

a. Widespread instances of over-voting

b. Widespread instances of voting without prior biometric

verification

c. Widespread instances of absence of the signatures of

presiding offices or their assistance on the Declaration forms

known as the 'Pink Sheets'.

d. Duplicate serial numbers

e. Unknown polling stations

f. Duplicate polling station codes

OVER - VOTING:

A look at all the statutes governing elections in this country

including even the Constitution is bereft of the definition of over-
voting. The Peoples Representative Law PNDCL 284 of 1992, Cl
75 and any other statutes, touching on elections have not defined
over-voting. In course of his evidence, the second petitioner who
gave evidence for and on behalf of the other petitioners stated
that over-voting may occur when the total number of votes cast
exceeded the number of ballots issued to voters. Another

466
instance of over-voting is when the total number of votes cast in
the polling station exceeded the number of registered voters at
that particular polling station. The representative of the first and
third respondent, Mr. Johnson Asiedu Nketiah disagreed with the
second petitioner on the definition. He was of the view that over-
voting would occur only when the total number of votes cast
exceeds the registered voters for the polling station in
controversy. This definition of over-voting by Mr. Johnson Asiedu
Nketiah was supported in its entirety by the second respondent
who gave evidence as the Electoral Commissioner himself when
he said that a classical definition of over-voting is when the total
number of votes cast exceed the total number of registered
voters. This so-called classical definition prompted my brother
Baffoe-Bonnie JSC to question him whether this definition holds
as there would never be hundred percent turnout in any
elections. The second respondent's representative, that is, Dr.
Afari-Gyan insisted on this definition. However, when he was
subjected to rigorous and far-ranging cross-examination he
admitted that certain pink sheets qualified to be declared as over-
voting notwithstanding that the total number of votes did not
exceed the registered voters in some polling stations.

It must also be pointed out that in course of his evidence the

second petitioners admitted that some of the pink sheets which
he initially considered as over-voting were not indeed so. Under

467
cross-examination the second petitioner had to admit out of
candour that some were arithmetical errors which did arise out
of the filing of the figures on the affected `pink sheets'.

The lack of any statutory definition presents an invidious situation

for the court to decide the fate of several polling stations which
the petitioners have presented to us to annul the votes on the
simple but cogent grounds that the results had been
compromised and that there was clear want of transparency at
the affected polling stations. Under this category of over-voting
the representatives of the first and third respondent was of the
view that in course of the voting a 'foreign material' may be
found in the ballot box to lead to over-voting. I must confess that
I found it very difficult to agree with him how a so-called
transparent electoral process could be so. In any case he was not
re-examined on what a `foreign material' meant and I can safely
presume that a `foreign material' may be some material that is
foreign to the ballot paper in the ballot box or something different
from the ballot papers in the ballot box.

In my opinion, over-voting may occur when the total number of

ballot papers issued to voters at a particular polling station is
exceeded by the total number of ballot papers in the ballot box.
Secondly, it may occur when the total number of ballot papers in
the ballot box exceeds the number of registered voters on the
polling station register. To define overvoting by limiting it to the
468
second part of the definition would not hold in that it is a fact of
history that it is always impossible to get a hundred percent,
turnout at any public elections. For the purpose of this delivery I shall limit
myself to the first definition of over voting.

The latter one put forward by the second respondent which was
supported in its entirety by the representatives of the first and third
respondents would not be helpful.

Assuming without admitting that there is merit for considering the other
definition put forward by the respondents, it cannot be pointed out that both
definitions in principle are against the idea of allowing one person to have
more than one vote. This in my view would run counter to the preamble of
the constitution which talks of "The principle of universal adult suffrage"
which guarantees to the citizen qualified to vote only once in every election.
I am of the opinion that in the exercise of the right to vote if it turns out that
an individual has voted more than once as required under the constitution
in an election, the whole electoral system is compromised by the abuse of
that right. In the local case of TEHN ADDY V ELECTORAL COMMISSION
& OR [1996-97] SCGLR 589 Acquah JSC [as he then was] made the
following observation in his opinion at page 594 when he pointed out the
onerous duty imposed on the second respondents as follows:

"Article 45 entrusts the initiation, conduct and the whole

electoral process on the Electoral Commission and article 46
guarantees the independence of the commission in the

469
 performance of its task. A heavy responsibility is therefore
entrusted to the Electoral Commission under article 45 of the
constitution in ensuring the exercise of this constitutional right
to vote"

Under regulation 24(1) of Public Elections Regulations 2012 C.l 75, no

voter should cast more than one vote. It states as follows;

24(1) A voter should not cast more than one vote when a poll is taken
It is therefore unconstitutional and contrary to regulations 24(1) of Cl 75 for
one person to be allowed to cast more than one vote. It must be pointed
out for further clarity that the Public Elections Regulations 2012, Cl 75 was
enacted pursuant to powers conferred on the second respondent under
article 51 of the constitution which provides as follows: 51."The Electoral
Commission shall by constitutional instrument make regulations for
the effective performance of its functions under this constitution or
any other law and in particular for registration of voters , the conduct
of public elections and referenda including provision for voting by
proxy"

Apart from the principle of Universal Adult Suffrage boldly stated in the
preamble to the constitution, Cl 75 which regulates elections also grants
"statutory injunction" against the abuse of electoral process when one
voter cast more than one vote as required by law. As the second
respondent failed to prevent the abuse of electoral process it stands to

470
reason that its own regulations governing the elections was clearly
breached when it recorded several instances of over-voting as

presented by the petitioners It is a clear case of illegality proved to my

satisfaction on the evidence presented to this court in the nature of
documentary evidence, that is, the pink sheets. Donaldson J [as he then
was] in BELIVIOR FINANCE CO LTD v HAROLD G. COLE & CO [1969] 2
ALL ER 904 said at page 908 as follows:

"Illegality, once brought to the attention of the court, overrides

all questions of pleadings including any admissions made
therein"

It should also be noted that all elections here and elsewhere, especially in
constitutional democracies are regulated by statutes. It is within the limits
of the statutes that elections elsewhere and in this country are conducted.
In the very recent case of REPUBLIC V HIGH COURT (FAST TRACK
DIVISION) ACCRA; EX-PARTE NATIONAL LOTTERY AUTHORITY
(GHANA LOTTO OPERATORS ASSOCIATION & OTHERS
INTERESTED PARTIES) [2009] SCGLR 390 at 397 the worthy president
of this court ATUGUBA JSC said:

"It is communis opinio among lawyers that the courts are

servants of the legislature. Consequently any act of a court that
is contrary to a statute such as Act 722 s 58(1)-(3) is unless
expressly or impliedly provided a nullity"

471
 The question is if a court of law does not give effect to the law who
will?

In the above-cited case, Date Bah JSC, one of the most illustrious and
lucid exponents of our contemporary judiciary said at page 402 as
follows;

"No judge has authority to qrant immunity to a party from

consequences of breaching an Act of parliament . But this was the
effect of the order granted by learned judge. The judicial oath enjoins
judges to uphold the law, rather than condoning breaches of Acts of
parliament by their orders. The end of the judicial oath set out in the
second schedule of the 1992 constitution is a follows: `I will at all
times uphold preserve protect and defend the constitution and laws
of the Republic of Ghana: ... is entirely inconsistent with any judicial
order that permits the infringement of an Act of Parliament"

In my respectful opinion any attempt to endorse a clear illegality in the

nature of over-voting which is contrary to and inconsistent with our
constitution and the constitutional instrument made thereunder would itself
be unconstitutional in the sense that it would defeat the principle of
Universal Adult Suffrage stated in our constitution.

I am of the opinion that no matter the number of votes involved that may
constitute over-voting; it is a clear illegality and should not be endorsed by
a court of law, more so by the highest court of the land. I will therefore
proceed to annul all votes which were proved by the petitioners to be so.
The figures and the polling stations would be addressed later in this
delivery.
472
NO SIGNATURE OF PRESIDING OFFICER

It is part of the case for the petitioners that some of the polling stations'
statement of poll and Declaration of Results for the office of the President
form known in these proceedings as the Pink Sheets were not signed by
the presiding officers of the polling stations affected . It should be clear
beyond question that on this allegation of fact the parties did not join issue
The only disagreement on this issue was the legal effect of the lack of
signature of the presiding officers at the polling stations involved. It has
been argued vigorously in the closing address of the petitioners that it
amounted to a serious irregularity as it was a clear breach of a
constitutional provision. This provision is Article 49(l) (2) and (3) of the
constitution which states as follows:

49(l) At any public election or referendum, voting shall be by secret

ballot.

(2) Immediately after the close of the poll, the presiding officer shall, in the
presence of each of the candidates or their representatives and their polling
agents as are present proceed to count at that polling station, the ballot
papers of that station and record the votes cast in favour of each candidate
in question.

(3)The presiding officer, the candidate or their representatives and, in the

case of a referendum, the parties contesting or their agent and the polling
agents if any, shall then sign a declaration stating

(a)The polling station; and

473
(b)The number of votes cast in favour of each candidate in
question; and the presiding officer shall, there and then,
announce the results of the voting at that polling station before
communicating them to the returning officer.

It has been argued and indeed maintained throughout these

proceedings that the signature of the presiding officer at the
polling stations appear to be mandatory and failure on the part of
the presiding officer to sign the pink sheets is tantamount to
electoral irregularity in the form of constitutional violation.

The respondents stoutly denied the effect of no signature by the

presiding officer. In his evidence on 27th May 2013, this was
what the representative of the first and third respondents said in
his evidence-in-chief:

Q. You are also aware that reference has been made to pink
sheets on which there is no signature of the presiding officer at
the polling station?

A. Yes my Lord I am aware of that allegation.

Q. What is your response to that?

A. My Lord it is true that we are all trained by the 2nd

Respondent that at the close of poll after sorting and tallying
votes to the candidates you have all the party agents including

474
the presiding officers who must sign then there is a declaration
then after the declaration each party agent is given a copy of the
pink sheet and the presiding officer has a duty of conveying the
results of the polling stations to the collation centre. So my Lord I
am aware that there is requirement that the presiding officer
must sign.

Learned counsel for the petitioners subjected his evidence to

crossexamination on this part of the evidence-in-chief.

He said under cross examination as follows:

Q. Are you aware that there are several instances where the
presiding officer did not sign the pink sheets?

A. Yes I have seen some instances where the presiding officer did
not sign.

Q. And your agents brought you several pinks sheets where the
presiding officer had not signed?

A. Yes I have seen some of them

Q These are your well trained agents?

A. Yes

Q. And they did not see that the presiding officer failed to
sign was a malpractice?

475
A. My Lord the agents are not to direct the presiding officer
about how they do their work. It is the presiding officer who
invites the agents to come and testify. So anytime the agents
disagree with the way and manner the work has been done, they
cannot, compel the presiding officer to do it, but they will raise
an objection if they think that would affect the outcome of the
results. But in this case, the signature or lack of it of a presiding
officer does not affect the results; it cannot add votes to any of the
contestants.

The representative of the second and third respondents in further answers

to the questions put to him under cross examination said:

"So it can only be a matter of omission because I cannot see

anybody who will finish his work, invite others to come and
attest to his work and then proceed to declare results, proceed to
transmit the declared results to the collation centre. And I am
sure if the presiding officers had time to revise their analyses
they would have detected this and correct it".

This was part of his answers under cross-examinations on the same

27/05/2013.

On the part of the second respondent who conducted the elections in

controversy, the lack of signature of presiding officers on the various
polling stations amounted to a mere irregularity if I understood him. For a
more detailed evaluation of the relevant evidence on this issue I refer to

476
the evidence of Dr. Afari Gyan under cross-examination by counsel for
petitioners.

Q. One of the reasons you gave for the non signature of the presiding
officer is that the presiding officer could be influenced not to sign?

A. My Lord I have not given any reasons for the presiding officers not
signing.

Q. You did not say that the presiding officer could be influenced, you
never said that?

A. What I said was that we should be worrying because if we are not, the
presiding officer could be induced not to sign simply because he wants to
achieve a desired result.

Q. So rather you said that they could be induced not to sign for a desired
result. First of all what will that desired result be?

A. My lords I would not know.

Q. And who could induce the presiding officer?

A. Anybody who is an interested party.

Q. Could the presiding officer also be induced to enter wrong figures?

A. I guess anybody could be induced to do anything.

In an answer to a question by learned counsel for the third respondent

the witness said that:

"Our conclusion, as a commission, is that the very fact of the

presiding officer not signing will not injure any particular

477
 candidate and therefore we accept the validity. You see, I don't
know what you lawyers mean by malpractice. In election
language that will not be a malpractice unless you can show that
the reason why the presiding officer did not sign was because he
wanted to favour or to injure somebody. In other words, it is a
simple irregularity".

Q. In fact Dr. Afari Gyan , you would agree that if presiding

officers had the ability by not signing to make the votes of
people not count that will actually be a danger to the rights of
people who have queued to vote, would you not?

A. My lords, I would agree because somebody could be

prevailed upon not to sign.

I think all the respondents against whom this allegation of no

signature of the presiding officer has been made agree that it was
a mere irregularity. It is to me the duty of the court to form an
opinion what would be the legal effect of lack of signature of the
presiding officer .l have already quoted above the constitutional
provisions under Article 49 clauses 1,2 and 3.

In interpreting a provision of a statute and constitutions for that

matter, at times it would assist the court for guidance if reference
is made to the law as it then stood before the coming into effect
of the provisions under consideration.

478
Perhaps it may be very useful for a moment to embark on a
journey into constitutional history of this country in the search for
clues to know how a constitution of this country should have this
provisions entrenched in under Article 290(1) (e) to render it not
vulnerable to easy amendment by Parliament. It is clear from a close
reading of the 1960 Republican constitution that no such provision existed.

In both the 1969 and 1979 constitutions, this country never had any similar
provisions whereby the presiding officer of a polling station was given
constitutional duties of this nature in such a serious matter which
determines the fate of public elections and referenda. A search into the
proceedings of minutes of the Consultative Assembly dated the 17th of
March 1992 would yield some clues. The contributions from J.C Amonoo-
Monney and Mr Muhammed Mumuni on this issue appears to be very
instructive and invaluable.

The requirement of the presiding officers signature on polling stations

declaration forms or Pink Sheets emerged as a constitutional requirement
for the first time in our post-republican constitution of 1992. As a country
with a desire to entrench democracy based on universal adult suffrage and
transparency and accountability the framers of the 1992 constitution had
cause to debate and insert this very important provisions in the constitution.
Care must be taken to avoid any attempt to multiply words through
linguistic manipulations to deny it effect as a constitutional provision,
entrenched for a purpose.

479
It has been vigorously argued and urged on us by citation of leading
cases like TEHN ADDY V ELECTORAL COMMISSION ; CENTRE FOR
HUMAN RIGHTS AND CIVIL LIBERTIES (CHURCIL) V ATTORNEY-
GENERAL AND ELECTORAL COMMISSION [consolidated] [2010]
SCGLR 575 that any rejection of the votes cast by voters in the exercise
of their constitutional rights as enshrined in the constitution on the
grounds that the presiding officer at any polling station did not sign will
be contrary to the constitutional rights of the individual to cast a valid
vote. Both cases appear to support the argument that nothing should be
done to deny any qualified Ghanaian his constitutionally guaranteed
rights to vote at public elections. I must place it on record that I was a
member of the panel which delivered the judgment in the AHUMAH-
OCANSEY case 'supra' on the interpretation of Article 42 of the
constitution.

I said as follows at page 676:

"However, Article 42 which is under interpretation is a

constitutional provision and, indeed an entrenched one which
stands on its own. Under Article 42 of the constitution, it is a
constitutional right which the framers of our constitution have
entrenched in the constitution to be enjoyed as a basic tenet to
democratic governance in electing our leaders. No wonder the
preamble of our constitution talks of the principle of universal
Adult suffrage"

480
I came to the conclusion in the above case in support of the opinions of my
worthy colleagues including the Chief Justice to make it abundantly clear
that prisoners ought to vote in public elections and should be registered to
exercise that fundamental constitutional right. Reference were indeed
made to the TEHN ADDY'S case by members on the panel to support the
constitutional right vested in the Ghanaian who is qualified to vote to be
registered to vote.

In this case, it is not the case that those electorates who would be affected
by any ruling adverse to their rights to vote were denied their rights to
vote. They voted in the normal course of the elections on the days the
elections were held. The only point raised against their votes is that the
presiding officers who were enjoined by the constitution to sign the Pink
Sheets did not sign them. The right to vote in my respectful opinion is not
just limited to voting but to have the vote counted. In the case of UNITED
STATES V CLASSIC 313 US 299 it was said that:

"the right to participate in the choice of representative for

congress includes the right to cast a ballot and to have it
counted at the general election whether for the successful
candidate or not".

I recognise, like it was done in the TEHN ADDY'S case, the individual's
constitutional right to vote and to have the vote counted as a
constitutional right. My only problem is that the requirement of the
signature of the electoral officer which is also a constitutional
requirement is seriously in issue.

481
On this, the case of MILWAUKEE SOCIAL DEMOCRATIC PUBLISHING
Co V BURGLESON, 255 US 407 comes to mind. In that case the court
was of the opinion that constitutional rights should not be fritted away by
arguments so technical and unsubstantial.

Before I proceed to form an opinion on this vital issue of constitutional

importance affecting the rights of the voters whose votes were cast in the
normal course of the elections, I think it would not be out of place for me to
examine in detail the role of the presiding officer whose lack of signature on
such a vital electoral document has sparked controversy. Apart from Article
49 of the Constitution which deals with the role of presiding officer in an
election, nowhere in the constitution is presiding officer mentioned.
However, Article 51 of the constitution mandates the second respondent to
make regulations for elections and referenda. It is a fact of electoral history
that several of such regulations were made by the second respondents
prior into the coming into force of the current one which is: Public Election
Regulations, 2012 (CI 75). Regulation 17 spells out the functions of the
Presiding officers and polling assistants.

The nature of this case is such that I have to quote ad longum the official
duties of the presiding officer under regulation 17(1) of C.I 75: 17 (1) The
commission shall appoint

(a) a presiding officer to preside at each polling station; and

(b) a number of polling assistance that the commission may consider

necessary to assist the presiding officer in carrying out duties.

(2)The duties of the presiding officer include

482
(a) setting up the polling station ;

(b) taking proper custody of ballot boxes, ballot papers,

biometric verification equipment and other materials
required and used for the poll;

(c) filling the relevant forms relating to the conduct of

the poll;

(d) supervising the work of the polling assistants;

(e) attending to proxy voters;

(g) maintaining under order at the polling station;

(h) undertaking thorough counting of the votes;

(i) announcing the results of the election at the polling station;

and

(j) conveying ballot boxes and other election materials to the

returning officer after the polls.

From the functions imposed by the instrument on the presiding

officer, it stands out clearly that virtually all the administration
and even including security matters for the smooth running of the
polls are vested in the presiding officer. The constitutional duties
imposed on the presiding officer apart from signing a declaration
stating the polling station and the number of votes cast in favour
of each candidate also includes announcing the results .It stands

483
to reason that he is deemed as the representative of the Electoral
Commissioner at the polling stations. In my respectful opinion the
signatures of the polling agents and the representatives of the
political parties at the polling station may be dispensed with as
from the available Pink sheets most of the political parties never
presented their representatives or polling agents at many polling
stations.

From the evidence on record apparent on the pink sheets many

political parties did not send agents or representatives to many of
the polling stations. None of the parties herein is making a case
out of that, in that, the interpretation one can put on Article
49(3) is that political parties are not bound under the constitution
to send agents to the polling stations. Their absence at any
polling station and for that matter not signing any pink sheets as
representatives or agents of the political parties would not
amount to any irregularities or malpractice in the electoral
process. A close reading of regulation 19 Of C.1 75 that is The
Public Elections Regulations 2012, in my view shows the limited
vote the polling agents play at the polling stations. The polling
agent does not have any major role to play in course of the
elections. It is clear under regulation 44 of C.l 7 that the non-
attendance of the polling agent shall not invalidate the act or a
thing done The role of the polling agent is to detect
impersonation and multiple voting and certifying that the poll was

484
conducted in accordance with the laws and regulations governing
elections.

The constitutional duties imposed on presiding officers at polling

stations as regards the result of elections are repeated in C.l 75
under regulation 36.The presiding officer is enjoined to sign the
declaration stating the name of the polling station, the number
of votes cast in favour of each candidate, and the total number of
rejected ballots, before proceeding to announce the results to the public.
The signature of the presiding officer is mandatory in the constitution and
the regulations made thereunder which is under consideration.

Some statutory provisions may express the performance of an act in

several forms. It may be permissive or mandatory. The courts in Ghana
have shown remarkable consistency in this regard. As far back as1972 in
the case of REPUBLIC V DISTRICT MAGISTRATE ACCRA; EX PARTE
ADIO [1972] 2 GLR 125 CA, the Court of Appeal was of the view that as
the town clerk who was mandatorily required by paragraph 19 of Act 54,
sched.Vll to affix a notice before a premises could be sold to recover rates
owed or intention to occupy that premises, had not done so the sale was
quashed on the grounds that a mandatory statutory condition was not
performed.

In all statutes, the courts apply mandatory provisions as expected and

failure of non-compliance are not waived in some circumstances The
current constitution has been interpreted in line with the time-honoured
principle that mandatory provisions must be respected. In A-G V FAROE
485
ATLANTIC COMPANY LTD [2003-05] GLR 580, Date-Bah JSC said at
page 601 as follows:

"The plain meaning of clause 5 of article 181 of the constitution

1992 would appear to be that where the government of Ghana
enters into " an international business or economic transaction
" it must comply with requirements, mutatis mutandis, imposed
by article 181 of the constitution. Those requirements clearly
include the laying of relevant agreement before parliament in
terms of clause (1) of Article 181 of the constitution, 1992. And
under clause (2) of article 181 of the constitution 1992, the
agreement is not to come into operation unless it is approved
by a resolution of parliament"

Article 181 clause 2 is a as follows:

(2) An agreement entered into under clause (1) of this article shall be laid
before parliament and shall not come into operation unless it is approved
by a resolution of parliament.

Effect of this mandatory provision has always being recognized in recent

cases of MARTIN ALAMISI AMIDU V A-G &ORS (unreported) suit No. J 1
/15/2012, a recent decision of this court is also in point.

In the FAROE ATLANTIC case, Akuffo JSC said at page 613:

"Had the court of Appeal considered article 181(5) of the

constitution, 1992 critically, it might have realized that, taking

486
 into account its language the overall effect is that, as with
loans, international business or economic transactions to
which the government is a party also require parliamentary
authorization shall be required for certain transactions, then
any transactions to which the provisions are applicable that is
concluded without the authorization of parliament cannot take
effect".

I have quoted at length the dicta of this court's esteemed jurists to

demonstrate the effect of mandatory provisions in statutes and the
constitution for that matter. The current Interpretation Act which is in
operation provides further support.

Section 42 of Interpretation Act, Act 792 of 2009 is as follows:

"42. In an enactment the expression "may" shall be construed

as permissive and the empowering and the expression "shall"
as imperative and mandatory".

The question that I respectfully ask is simply this:

If in an ordinary statute shall should be construed as imperative and

mandatory, what interpretation should we place on the same word shall if it
appears in our constitution and calls for construction?

I am of the firm view that the framers of the constitution inserted the word
shall there for a purpose and should be construed as imposing a

487
mandatory duty on the presiding officers to perform their statutory duty
which appears clearly as a condition for the declaration of the results at the
polling stations. When there is clear breach of mandatory provisions of a
constitution it must be so declared and no effect is given to the act
performed in breach of the provisions in issue.

As the constitution is the supreme law, equitable defences of estoppels, etc

would obviously be inapplicable See TUFFOUR V A-G [1980] GLR
637.The forceful argument that the agents of the various parties including
that of the petitioners signed in my respectful opinion would not matter.
Learned counsel for the first respondent has urged on this court that as the
presiding officer counted the votes and the results properly tallied, entered
onto the declaration form and declared by the presiding officer the court
must adopt a purposive approach to the interpretation of Article 49(3) and
should not invalidate the results for lack of signature by the presiding
officers. It was also urged on us that the polling station agents did not
protest in any prescribed manner as required by electoral laws and further,
it would accord with preserving the votes of the Ghanaian voters if the court
should resolve this issue in favour of the respondents under Article 42 of
the constitution on which the two landmark cases of TEHN ADDY and
AHUMAH-OCANSEY supra, were decided by this very court.

I have considered the issues raised by counsel for the first respondent on
this issue of lack of signature of the presiding officer. It appears the
submissions of other counsel for the other respondents support his views
which he has seriously pressed on this court.

488
My personal view is that Article 42 which gives every qualified citizen of
Ghana the right to vote in public elections cannot be read in isolation in this
case. Every right conferred on the citizenry is regulated by the constitution.
A citizen of Ghana who is eighteen years and above and of sound mind
cannot go to a polling station and cast a vote without going through the
procedure of registration laid down by law. Even the voting at the polling
station which ultimately ends up with sorting out ballot papers for valid and
invalid votes, announcement of results after the necessary entries on the
pink sheets are all statutorily regulated.

In my opinion, the article under consideration, that is, Article 49(3) is very
clear and unambiguous it is trite law that when the provision of a statutes
and constitution for that matter is clear and unambiguous it is not the duty
of a court of law under the guise of interpretation to scan the provision to
interpret the clear and unambiguous provisions. This has been the position
of the law since the oft-quoted case of AWOONOR-WILLIAMS v
GBEDEMAH [1970] CC 18 was decided.

If the fundamental law of the land which is the constitution has entrenched
Article 49(3) to make it a constitution precedent for the validity of the
election results, I am of the view that effect must be given to it
notwithstanding the fact that Article 42 preserves the right to vote.

My position on this issue may be seen by some jurist as not preserving the

right conferred by Article 42 but a judge's duty is to uphold the

constitution which is the supreme law of the land. I always remind myself

489
that some citizens who queued to vote may have their votes annulled

under the circumstances by applying Article 49(3). But as it has been said

in several cases that provision of the constitution must be upheld in all

times. In the case of HOME BUILDING & LOAN ASSOCIATION V

BLAISDELL

290 US 398 at 483, Justice Sutterland had this to say:

"I quite agree with the opinion of the court that whether the
legislation under review is wise or unwise is a matter with which
we have nothing to do. Whether it is likely to work well or work ill
presents a question entirely irrelevant to the issue. The only
legitimate inquiry we can make is whether it is constitutional. If it
is not, its virtues, if it have any, cannot be invoked to accomplish
its destruction. If the provisions of the constitution be not upheld
when, they pinch as well as when they comfort then must as well
be abandoned" [emphasis mine]

My constitutional duties would be fulfilled as a judge if I enforce the

constitution. Our judicial oath taken on our appointment as judges enjoins
us to at all times uphold the constitution which is the supreme law as
clearly stated in the second schedule to the 1992 constitution .

If Article 49(3) would work injustice against the citizenry who registered,
queued and voted, it is regrettable that I cannot in upholding the very
constitution engage in any manipulation of language and deny its effect
when it has been thrown to us for the first time ever in the history of this

490
court . I will uphold the constitution and proceed to give effect to it by
annulling the votes cast which were not, on the face of the pink sheets,
signed by the presiding officer to reflect what actually took place at the
various polling stations involved .

The arguments that the agents signed and the result publicly declared by
the presiding officers would not hold as in my opinion there is a clear
breach of a vital constitutional provision which is a condition precedent to
the declaration of the results involved in the affected polling stations.

VOTING WITHOUT BIOMETRIC VERIFICATION DEVICES

This is yet another ground on which the petitioners are seeking to annul
votes cast. The petitioners in their pleadings and the further and better
particulars supplied made available several Pink Sheets which they claim
support their allegation that some votes did not go through biometric
verification process.

It is their contention that under regulation C.I 75 of 2012 a voter must go

through biometric verification to make his votes valid. The said regulation
states as follows:

30(1) A presiding officer may, before delivering a ballot paper to a

person who is to vote at the election, require the person to produce
(a) A voter identification card or

(b) Any other evidence determined by the commission

491
In order to establish by fingerprint or facial recognition that the person is
the registered voter whose name and voter identification number and
particulars appear in the register.

The voter shall qo through a biometric verification process.

It is a fact of history in our electoral process that this is the first time in
Ghana that biometric verification process was introduced in public
elections. A short trip into history since 1992 in my respectful view will
suffice. In 1992 a ballot box was not transparent for any voter to see what
was in it. Voters cast their votes without any voter identification card
provided the voter did register at a particular polling station, he or she could
vote. Voters' identification and transparent ballot boxes were later
introduced but voters' identification cards were initially limited to few areas
in Ghana. Another development which emerged was the introduction of
voters' identification card for all registered voters in Ghana. Perhaps the
last one is the introduction of biometric verification machine process,
which was hitherto unknown in our electoral process. Its
introduction, as said above is supported by C.l 75 of 2012.

In my respectful view the issue of voting without biometric

verification could be resolved by determining whether indeed
some voters were not biometrically verified and secondly,
whether or not lack of the biometric verification should lead to
the annulment of votes cast. The petitioners contend that some
voters did not undergo any verification as required under the
regulation as it then stood. The respondent deny vehemently this
492
allegation of lack of biometric verification. Like any other denials
in civil litigation it calls for proof by preponderance of
probabilities. On this issue, it is clear that the petitioners bear
the burden of proof to satisfy this court that indeed some voters
were not biometrically verified as pleaded in their pleading based
on which further and better particulars of the allegations were
filed later.

The respondents, to be precise, the second respondent said the

challenges which emerged from the use of the biometric
verification machines were later successfully overcame and
nobody voted without biometric verification and therefore there
was no breach of the regulations.

The pink sheets in evidence to prove this issue of no biometric

verification necessitates a closer evaluation of the rival
testimonies.The evidence of the second petitioners is to the effect
that the entries made by the presiding officer is column C3 of the pink
sheets which is obviously the ballot accounting column provided a basis to
support their allegation. The petitioners are of the view that column
provided a basis to support their allegation. The petitioners are of the views
that column C3 represents the same details on the voter identification cards
captured by the second respondent and duly issued to those who were
biometrically registered. That column was intended to, as it were, capture
the number of those who voted at the elections with the aid only of their
voters identification cards and did not obviously go through prior fingerprint

493
verification as required by C.I 75. In the opinion of the petitioners any entry
of figures made by the presiding officer in that column represents the
number of voters who did not undergo biometric verification before voting.
In his evidence on this issue the second petitioners again relied exclusively
on the pink sheets to make his case. No wonder in several answers to
questions he said:

"You and I were not there"

In his answers to questions under cross-examination from counsel for the

first respondent these are some of the answers:

Q In all instances that you alleged people voted without biometric

verification you are not suggesting for a moment that somebody voted
whose name was not in the voters register. Are you?

A We are suggesting that the face of the pink sheets indicates a number of
people who voted without biometric verification.

Q. This is a direct question, you cannot evade it and I am

asking you a direct question. Are you alleging that anybody
voted who was not qualified to vote?

A. I wasn't at the polling station so I can only go by what is on

the face of the pink sheet.

These answers to probing question from the first respondent's

counsel shows how the petitioner was relying, as it were,
exclusively on the materials on entries on the pink sheets.

494
In his evidence, the first respondent's representative, Dr.
Kwadwo Afari Gyan said by way of denial that the entries on the
pink sheets in respect of C3 were evidence of voting without
biometric verification . He further insisted that those entries were
clerical errors and that column C3 was not required to be filed at
all by the polling station presiding officers. He continued in is
evidence that column was placed there to cater for those voters
who had been registered by the electoral commission during the
biometric registration exercise before the voting but whose
biometric data had got missing as a result of some difficulties that
the electoral commission had encountered. He went further to say
that as he wanted to give everybody the opportunity to vote he
devised this facility to allow those persons to vote without going
through the biometric verification and that would involve the
filling in form 1 C before one could vote. According to the witness
this proposal was rejected outright by political parties; and he
instructed that Form 1 C should not be sent to the polling stations
and that the C3 column was not supposed to be filled by the
Presiding Officers. Dr. Afari Gyan said in details as follows;

"C3 was put there in an attempt to take care of those people who
through no fault of theirs would have valid voter ID cards in their
possession but whose names will not appear on the register and
therefore could not vote. But let me add that when we discussed
this with the political parties , some of them vehemently said no,

495
that we will not allow any person to be verified other than by the
use of verification machine. I am just explaining why the C3 came
there. The parties said no and we could understand that
argument that this facility is not given to one person, it is being
given to every presiding officer, so you are given this facility to
26,002 and it is possible to abuse it. So we do not want it and we
agreed that facility would not be used". Unfortunately, the forms
had already been printed, and these forms are offshore items, so
we could not take off C3. And what we said, and we have already
said this in our earlier communication was that we will tell all the
presiding officers to leave that space blank because they have
already been printed and there was no way that we could take it
off. And that explains the origin of C3 on the Pink Sheets .It was
a serious problem".

I have gone very far to quote the crucial evidence of the second
respondent on this matter of no biometric verification. In his view
C3 was not to be filled but they were filled by some presiding
officers. The case of the petitioners on this matter, as pointed
out earlier in this delivery, is only limited to the entries on the
face of the pink sheets and no more. The second respondent on
this issue tendered Exhibit EC 2 on 24th April 2013. Exhibit EC 2
is: A guide to Election officials' E lection 2012 Presidential and
parliamentary Elections.

496
This book or manual as one may call it, was prepared by the
second respondent to guide the public on voting procedure On
the face of the pink sheets or the statement of poll for the office
of President of Ghana the C column of which C3 should be filled
or not to be filled is designated as the Ballot Accounting (To be
filled in at END of the poll before counting commences).If indeed
this was what was officially used to train the presiding officers it
does not contain C3 but on the right hand side of it a provision is
made for C3 to be filled . On the left hand side column it
commences from C 1, C2, C3, C4, C5 and C6.

At C6 it is stated thus:

What is the total of Cl, C2, plus C3, plus C4? (This number
should equal A.1 above) Why the deletion of C3 appeared on the
left hand side and was stated on the right hand side is
incomprehensible to me. Whether it was as a result of bad
printing was not explained. When it was printed and how the
training was done as regards this problem is still shrouded in
doubt.

My problem is that these pink sheets cumulatively form mass

documentary evidence amassed by the petitioners. They were
filled and given to the agents of the parties after the close of
polls. The only contribution from the agents in generating pink
sheets at a polling station is that they sign the form if they are
present. If they also want to protest formally, this they could do,
497
and no more. The pink sheet to me is under the exclusive control
of the presiding officer from the time polls start till after he has
signed them and issued them out. This is a statutory document
required by law and even under the constitution to be signed by
the presiding officer. It stands to reason that if entries are made
thereon, prima facie, the entries are deemed as the official
recordings of whatever took place at the polling station and no
more. I do not think that any of the parties to this petition will
dispute the fact that the recordings on the face of the pink sheets
are deemed to reflect what the presiding officer in his official
capacity recorded at the polling station for the declaration of the
results. This is a documentary evidence of a transaction very
serious and vital in every respect. To me it raises a strong
presumption of regularity and satisfies, in my view the best
evidence under the circumstances provided the evidence is
admissible.

I do not find any objection to the admissibility of the pink sheets. In J.SABA

& Co LTD V WILLIAM [1969] CC 52 CA it was held as follows:

"MAJOLGBE V LARBI has been considered by this court in its

judgment in the recent case of the Republic v Asafu-Adiaye No 2
[1968] CC 106 CA in which it was held that the dictum quoted
above is no authority for the proposition that a judicial tribunal
cannot decide an issue on the evidence of one witness or on the
oath of one person against that of another"...

498
 When the statement therefore refers to an averment capable of
proof in some positive way, e.g. by producinq document it can
only mean such an averment as by its very nature requires to
be proved by than a mere assertion on oath. What evidence is
required to prove an averment can only depend on the nature
of the averment"

The evidence by the presentation of the pink sheets by the petitioners in

my opinion raises prima facie evidence of what officially took place at the
various polling stations. In my opinion the petitioners have discharged the
burden of proof as none of the pink sheets supplied in respect of lack of
biometric verification attracted any objection on admissibility. The
respondents who on the pleadings and the evidence doubted what is
officially recorded on the pink sheets must satisfy this court that the
recordings are incorrect or suffer from any defects known to admissibility of
evidence. As regards the second respondents whose agents, that is the
presiding officers, prepared, signed and issued the pink sheets to the
petitioners agents at the various polling stations they are estopped from
denying their authenticity. Under section 26 of the Evidence Act, NRCD323
of 1975 the law is clearly stated as follows

"26" Except as otherwise provided by law including a rule of

equity, where a party has, by his own statement, act or omission,

intentionally and deliberately caused or permitted another

person to believe a thing to be true and to act upon that belief,

499
 the truth of that thing shall be conclusively presumed against
that party or his successors in interest".

From the evidence of the second respondent's representative he relied on

all those pink sheets to declare the results and he cannot just deny its
contents. He is bound by the entries on the face of the pink sheets. I find
his explanation as most unsatisfactory in that he could not indeed tell the
court when and by which means it was officially made known to the
presiding officers not to fill C3.lf he was in serious doubt , a court of law
must not leave this vital evidence led in rebuttal to guess or conjecture. I
am aware of the submissions from counsel for the first and third
respondents that this evidence on the C3 was left unchallenged by counsel
for petitioners.

I accept the proposition of law that when evidence led against a party is left
unchallenged under cross-examination the court is bound to accept that
evidence, see AYIWAH V BADU [1963] 1 GLR 86, NARTEY V VRA
[1989-90] 2 GLR 368 and TAKORADI FLOUR MILLS V SAMI FARI
[2005-06] SCGLR 882, but it was clear that Dr.Afari Gyan who gave
evidence on this issue was just conjecturing and it would be a sad day for
me to believe such evidence, more so when throughout his evidence
under-examination be demonstrated want of credibility. I find that the
respondents, especially the second respondent who led evidence to rebut a
documentary evidence prepared by his duly authorized agents failed to
lead credible evidence to rebut the presumption of regularity of officials
acting in their statutory capacity and performing their constitutional duty.
The evidence on the face of the pink sheets that there were no biometric

500
verification has not been rebutted by the second respondent as required by
law in civil cases .I find as a fact that the petitioners have proved that the
entries show conclusively that those voters were not verified biometrically
.On this I cannot rest without citing the case of HAWKINS V POWELLS
TILLERY STEAM COAL Co LTD [1911] 1 KB 988,996 where Buckley LJ
said:

"When it is said that a person who comes to court for relief must

prove his case, it is never meant that he must prove it with

absolute

certainty. No fact can be proved in this world with absolute

certainty. All that can be done is to adduce such evidence as that

the mind of the tribunal is satisfied that the fact is so. This may
be

done either by direct evidence or by inferences from facts. But

the matter must not be left to rest in surmise, conjecture or
guess".

In my opinion the various affidavit filed against this issue of lack of

biometric verification do not in the least rebut the documentary evidence
duly prepared by the second respondent's agents, signed by them and
duly used for the declaration of the results which is in controversy. I feel
that this is not the type of evidence needed to rebut the presumption of
regularity raised in favour of the pink sheets covering lack of biometric
verification.

501
Having found that the clear regulation has been flouted by the second
respondent, I will uphold the claim of the petitioners on this category and
proceed to annul votes cast without the biometric verification as required by
law.

UNKNOWN POLLING STATIONS, DUPLICATE POLLING STATION

CODES, AND DUPLICATE SERIAL NUMBERS

These categories in my view could be dealt with together. I had a draft copy
of the opinion of my esteemed brother Dotse JSC on these remaining
categories. I took time to have detailed discussion with him on his draft. It
appeared that my learned brother had put a lot of industry in preparing his
opinion on these categories of electoral irregularities or malpractices. I find
his reasons very convincing in law based on the evidence adduced before
us by the parties. I am in support of the reasons canvassed by him for the
dismissal of these categories and I cannot multiply words to justify my
agreement with him. I therefore, like my brother proceed to dismiss these
categories as not proved by the standard expected of a suitor.

CONCLUSION

Before I rest my opinion on this petition, I must comment on the point

raised by learned counsel for the first respondent who argued that the
petitioners did not exhaust the remedies available by petitioning the second
respondent herein. I have considered the evidence on record and it
appears that the petitioners presented a petition to the second respondent

502
to postpone the declaration of the results. This, the second respondent
declined. He said it was unmeritorious and according to Dr. Afari Gyan, the
evidence supplied to him later by the petitioners' party was woefully
insufficient to justify the postponement of the declaration of the result. I
have taken time to refer to this point raised in his closing address as I think
he was the only counsel who raised this point and therefore calls for
attention on the part of this court which owes counsel a duty to comment on
it.

I deferred the computation of the voters whose votes were to be annulled

under the three categories fully discussed by me earlier on in this
judgment. It has become very difficult in the computation of the figures as
pointed out earlier in that there were changes in the figures on several
occasions and the KPMG report as the report of the only official referee
was not conclusively helpful. It must be pointed out that when parties filed
their respective addresses the petitioners compiled a data and had it
served on counsel for the respondents. These data contained the list of
Pink Sheets used in this petition and those deleted. It is on record that
these data were served on the respondents for their study before the court
invited oral submissions from counsel. It turned out that no question was
raised against the data submitted by the petitioners. It probably may not be
an accurate representation of the exact figures from the pink sheets filed in
this petition. However, I have noticed that all the pink sheets captured in
the date were in the KPMG report which was accepted by the court as the
official record of pink sheets to be considered by this court which had also
taken care of pink sheets not legible as well as others that suffer from
other deformities.

503
On the several pink sheets that fell within the category of No Signature,
the invalid votes which were declared as annulled by me would be
659,814 out of which the first petitioners' annulled votes would come to
170,940 whereas that of the first respondent would come to 382,088. It
does appear that his would reduce the first petitioner's valid votes to
5,077,958 whereas that of the first respondent's would come up to
5,192,673. It must be pointed out that other contestants obtained
insignificant numbers.

However, neither the first petitioner nor the first respondent would obtain
fifty per cent plus as required under the constitution as the first petitioner's
percentage votes would be 48.68% whereas that of the first respondent
would be 49.78% of the total valid votes cast.

As regards over-voting the first petitioner's votes after annulment of the

invalid votes would be 5,040,176 forming a 48.88% of valid votes whereas
that of the first respondent would be 5,112,667 making a percentage of
49.59% of the valid votes cast.

On no biometric verification, the invalid votes to be annulled against that of

the first petitioner would be 221,678 leaving his valid votes to 5,027,220
and making a percentage of the total valid votes cast stand at 49.14% in
percentage terms, whereas the first respondent's total annulled votes
would come up to 526,416 leaving him with 5,048,345 and a percentage of
49.35% of valid votes cast.

THE ISSUES: I do not think that from the evidence of the petitioners, both
documentary and oral, any one would doubt that the petitioners failed to
504
prove multiple irregularities, malpractices and statutory violations against
the second defendant. I am of the firm conviction that issue (1) was proved
to my satisfaction by the available evidence on record and I accordingly
proceed to resolve same in favour of the petitioners.

On Issue (2), I find from the evidence that given the number of votes
affected by the violations, omissions and malpractices and the
irregularities appear to be such that they impacted adversely on the
results, I would also resolve issue (2) in favour of the petitioners.

I would have readily proceeded to grant the reliefs sought in its entirety but
the ONLY problem is that from the available evidence, the widespread
violations, omissions and malpractices appeared to be of such proportions
that it would not be proper for me to declare the first petitioner as winner of
the elections in controversy in terms of the reliefs sought. I find the
malpractices, omissions and violations enormous which rock the very
foundation of free and fair elections as enshrined in our constitution which
was itself breached through over-voting, lack of presiding officer's signature
and lack of biometric verification which takes its validity from Article 5l of
the very constitution.

I would therefore grant the relief (i) in view of the evidence led and decline
to grant relief (ii). I, however, as consequential order, order the second
respondent to organize an election to elect a president as I cannot rely on
an election which was seriously fraught with all the malpractices,

505
irregularities and statutory violations proved in this petition to declare the
first petitioner as having been duly elected.

Before I rest my delivery, I would want to point out that so much reliance
was placed on the Canadian case of OPTIZ V BORYS WRZESNEWSKYS
[2012] SCC 55. It must be pointed out that this Canadian case which was
cited by all must be read within its own context for its persuasive value. It
was decided on the legislation as it then stood, that is, Canada Elections
Act, S.C 2000, C9, SS. 524 (1) (b), 531(2) involving an electoral petition in
which a candidate in federal election was defeated by margin of twenty-six
votes alleging irregularities.

No matter the persuasive effect of this decision which was split, care must
be taken not to allow foreign decisions to persuade us when our own
legislations or constitution are placed before us for interpretation. In the
case of SAM NO.2 V A-G [2000] SCGLR 305, Her Ladyship Justice
BanfordAddo JSC cautioned us in the following words at page 315:

"In interpreting our constitution, it is important that the

constitution should be interpreted in the light of its own wording
and not by reference to their constitution in other jurisdictions,
for example, that of the United States. Our constitution is
peculiar to us and we must therefore interpret it in accordance
with its clear words as well as its spirit.

506
 Therefore cognizance must be taken only of the expressed
provisions in our constitution and in accordance with the clear
intentions of the drafters of the constitution. No reliance should
be placed on the requirements of the constitutions in other
jurisdictions, whose constitutions are structured to suit their
individual needs"

With this admonition at the back of my mind, I am done.

(SGD) ANIN YEBOAH

JUSTICE OF THE SUPREME COURT

507
BAFFOE-BONNIE JSC:

On the 7th and 8thdays of December, 2012, Ghanaians went into general elections to
elect 275 members of parliament and an Executive President and Vice President.
The Elections were conducted by the second respondents, a constitutional body
vested with the exclusive powers to conduct public elections in Ghana. The
Parliamentary elections though, had its own problems, is not the subject of this
petition. So any reference to the December Election in this judgment, unless
otherwise contrarily stated, is a reference to the 2012 Presidential Elections in
Ghana.

The Executive Presidency was contested by 8 persons and their running mates
who, by law, would be designated Vice-President when such person is so elected.
Seven of the candidates were sponsored by Political Parties, namely:

1. National Democratic Congres(NDC)JOHN DRAMANI MAHAMA,

2. New Patriotic Party (NPP)NANA ADDO DANQUAH AKUFFO-ADDO,

3. Convention People’s Party (CPP) DR MICHAEL ABU SAKARA FOSTER,

4. Peoples National Convention(PNC)HASSAN AYARIGA,

5. Great Consolidated People’s Party(GCPP),DR.HENRYHERBERT

LARTEY;

6. Progressive People’s Party (PPP) Dr. PAPA KWESI NDUOM

7. UNITED FRONT PARTYAKWASI ADDAI ODIKE

One person JACOB OSEI YEBOAHstood as Independent candidate.

508
On the 9th of December, the second respondent, per its
ChairmanKwadwoAfariGyan, who is constitutionally designated as the returning
officer of the Presidential Elections, declared the NDC’s John DramaniMahama,
duly elected as President with a 52 per centum majority, and the NPP’s Nana
AddoDankwaAkuffo-Addo, as runner-up with 47 percentum of the votes. The
declaration, showing positions and percentage of votes won has been gazzeted as
C.I. 85.

Feeling aggrieved, the 1st petitioner, Nana AddoDankwahAkuffo-Addo, who stood

on the ticket of the New Patriotic Party as presidential candidate, his running mate,
Dr.MahamaduBawumia,and Jake ObetsebiLamptey, the Chairman of the New
Patriotic Party, filed a 33-paragraph petition challenging the declaration by the 2nd
of the 1st respondent as the validly elected president. The reliefs that the
petitioners seek are:

1. a declaration that John DramaniMahama was not validly elected as

president of the Republic;

2. a declaration that Nana AddoDankwahAkuffo-Addo, the 1st petitioner,

rather was validly elected president of the Republic of Ghana; and

3. consequential orders as to this court may seem meet.

The petition had initially been brought against the President elect and the E.C. but
the NDC was joined to the action as a third party on the basis that they sponsored
the 1st respondent, and were therefore necessary parties. Their application to join
was approved by a 6to 3 majority. After the initial pleadings, amendments, further
amendments and a host of interlocutory applications from all parties, which said
applications included an application for further and better particulars, an
application to serve interrogatories, etc, the case was finally set down for hearing.
509
After sifting through a mass of pleadings the Court set the following two issues
down for trial:

1. Whether or not there were irregularities, malpractices, and/or statutory

violations in the conduct of the December 2012 Presidential Elections;
and

2. Whether or not these irregularities, malpractices and statutory

violations, if any, substantially or materially affected the outcome of the
December 2012Presidential Elections.

Giving further directions as to the mode of trial the court decided that trial was
going to be by affidavit evidence and that parties could give viva voce evidence
and be cross examined. Witnesses who filed statements may be cross examined
with the leave of the court.

THE PETITIONERS’ CASE

It is the case of the Petitioners that during the conduct of the December 2012
Presidential Elections, there were several irregularities, malpractices, omissions
and commissions and downright violations of statutory provisions including
constitutional provisions that were pervasive in a significant number of polling
stations throughout the nation. These anomalies were such that certain number of
polling stations totaling about 11,138 (specifically identified), should have their
results annulled. Some of the anomalies pointed out by the Petitioners were as
follows:

1. Failure of the Presiding officer of the polling station to sign the

declaration of the results;

2. The use of Pink Sheets with Duplicate Serial numbers;

510
3. Allowing some people to vote without Biometric Verification; and

4. Over voting.

Two other in fractions were also isolated ie. Pink Sheets of Unknown
polling stations, and Polling stations with duplicate pink sheets. But the
second petitioner sought to abandon these when he said the numbers
involved in those two infractions were not significant to affect the
outcome of the elections.

FAILURE OF THE PRESIDING OFFICER TO SIGN DECLARATION

FORMS (PINK SHEETS)

It is the case of the petitioners that, anumber of polling stations pink sheets were
not signed by the presiding officers as required by law and so all those polling
stations should have their results annulled and the figures so annulled be deducted
from the results as declared. They claim that if the votes are annulled for this
constitutional or statutory violation alone the results as declared will be affected. It
is their case that the use of the word ‘shall’ in a document connotes a mandatory
situation as against ‘may’ which is permissive. And when it is used in a no less
statute as the constitution of the State, anything done contrary to what shall be
done is a violation that cannot be saved.

The 2nd respondent put up three defences to this claim.This is what they said in
their response to the petition;

The 2nd Respondent denies paragraph(f) of ground 1 of the 2nd Amended Petition
and says that upon being served with the further and better particulars provided
by the Petitioners following orders of this honorable court dated February 5 and

511
7, 2013, it conducted an examination and analysis which showed that: of the
2,009 pink sheets that the Petitioners claimed to be unsigned, 1,099 were in fact,
signed by the Presiding officer at the polling station or, at the instance of the
Returning Officer at the Collation Centre; 905 were unsigned, representing 3.5%
of the total number of pink sheets nationwide; and 1,989 pink sheets,
representing 99% claimed to be unsigned were signed by the Polling or Counting
Agents of the candidate. Thus, the 2nd Respondent maintains that the request by
the Petitioners that votes cast at the said polling stations are invalid and should
be deducted is without merit and should be refused. It should also noted that
when several pages of paper impregnated with carbon are used in order to have
several copies of each page, it could happen that if the person signing or writing
thereon does not press hard enough on the paper, the signature or writing could
appear faint or illegible on some of the pages.

In addition to this Counsel has also submitted that the absence of the signature of
the presiding Officer is not sufficient to annul the votes of persons who have
exercised their franchise under the constitution, particularly in a situation where
the accredited representatives of the parties or the candidates have duly signed to
authenticate the regularity of the conduct of the polls. The right to vote as
guaranteed under the constitution is paramount and not only must it ensure that
persons qualified to vote exercise it, but it must also be ensured that peoples’ votes
once regularly exercised are not annulled on the basis of technicalities. Failure to
sign by the presiding officer ought to be seen as an irregularity that does not affect
any party or conduct of the polls. The call for annulment of votes under this head is
therefore misplaced.

512
THE USE OF PINK SHEETS WITH DUPLICATE SERIAL NUMBERS

It is the case of the Petitioners that the Pink Sheets were imported into the country
with numbers embossed on each pink sheet to differentiate it from any other pink
sheets. In that case each pink sheet should bear a different serial number in all
26002 polling stations in the country. However this was not done. They detected
that out of the over 11000 pink sheets reviewed, over 10000 had their counterparts
or duplicates used instead of their “original” pink sheets. This was done because
the second respondents had intentionally imported more pink sheets with the view
to manipulating the results of the polls. The use of counterpart pink sheets instead
of different pink sheets for each polling station is an irregularity which should lead
to annulment of votes in all polling stations affected, in this case about 10,000 plus
polling stations with a total voter population of over 2.5 million voters.

The response of the second respondent to this claimis that the petitioners claim has
no basis and not well founded. Yes it is true that each pink sheet has a different
number, but they are not in series and therefore not serial numbers properly so
called. The numbers are not security numbers that can be used to track the polling
stations in which they are actually used. So any pink sheet with any number can be
sent to any region, constituency or polling station. Pink sheets are packed at
random and their distribution does not follow any pattern in terms of the numbers
embossed on them.

Rather, when the pink sheets are sent to the regions thence to the constituency and
polling stations, they are blank. It is when they are filled in that the polling station
codes become the identifying marks and reference points.For example, when one
picks a pink sheet with a number likeA170202 written in the polling station code
number column, even without reference to the name one can say that this pink

513
sheet comes from a constituency in the western region. The letter A is western
region, the first two digits are constituency codes and then polling station etc .In
effect a pink sheet is not identifiable by the number embossed on it but rather by
the polling station code written on it. So whether two pink sheets bearing the same
embossed numbers are used by two different polling stations either in the same
region or in different regions it doesn’t matter and definitely cannot call for the
annulment of ballots validly cast. This category should also be dismissed.

VOTING WITHOUT PRIOR BIOMETRIC VERIFICATION.

For the first time in the history of elections in this country, the 2012 general
elections was supposed to be conducted with identification of potential voters by
biometric verification. The nation spent a lot of time and energy registering eligible
voters biometrically. Biometric registration involved taking the finger prints of
eligible voters in addition to facial recognition. In the round up to the elections a
lot of inter party discussions took place and it was finally decided that voters who
could not be biometrically verified on the election day would not be allowed to
vote even if they had their names in the register. There appeared in the political
landscape the popular slogan “NO VERIFICATION, NO VOTING.” C.I.75 reg
30(2) supportedthisslogan. The constitutionality of this CI is being challenged in
court, so I will stay off discussion on this for now.

Be that as it may, constitutionality or otherwise, all the parties went into the
general election with the understanding that no verification, no voting.The whole
concept of biometric registration and verification before voting had been
introduced as a way of reducing to the barest minimum, if not eradicate
completely, the incidence of claims of double voting and impersonation that crop
up after every election. It was supposed to increase transparency and enhance

514
people’s acceptability of the election results.Indeed at one of the numerous press
conferences the electoral commissioner made it clear that at the end of the polls,
where the votes cast exceed the number of persons verified to vote by even one
vote, the results of the said polling station will be cancelled. Based on this
understanding, some voters were turned away from some polling stations and were
not allowed to vote because they could not be verified. But as borne out by some of
the pink sheets at a number of polling stations reviewed by the petitioners, some
people were allowed to vote without prior biometric verification. In fact in quite a
number of cases recordings on the pink sheet indicated that all voters voted without
prior biometric verification.

The response of the respondents, particularly the EC, was that no persons voted
without biometric verification as agreed on by the parties before election day. And
that the entries found in the pink sheets which creates the impression of people
voting without prior biometric verification, were wrongly made and part of the
administrative lapses that did not affect the conduct of the polls. That the
respective polling agents signed at the various polling stations without any excuse
belies the claim that any electoral irregularity went on.

OVER VOTING

The petitioners claim that there were indications that in quite a number of polling
stations there was over voting. And this is evident on the face of the pink sheet.
The petitioners give three main definitions of over voting:

1. Where the ballots found in the ballot box exceed the number of ballot
papers issued to the polling station;

515
2. Where the ballot papers found in the ballot box exceed the number of
persons REGISTERED to vote in the polling station; or

3. Where the ballots found in the box exceed the persons actually verified
to vote, i.e.those registered and actually appearing at the polling
station, verified and given ballot papers to vote and actually voting.

According to the petitioners all these figures are verifiable from the face of the
pink sheets. The votes in all such polling stations should be annulled and same
deducted from the overall votes garnered by the parties. Statistically, this infraction
alone could lead to a change in political fortunes of the two.

The respondents disputed this three tier definition and said the classical definition
of over voting is where the ballot papers actually exceed the number of persons
actually registered at the polling station. Even then when it comes to over voting
the pink sheet may not be the primary or only source of information. And that if
figures on the pink sheet indicates that the ballot papers found in the box actually
exceed the figure written for the number of registered voters, one will have to cross
check from the actual register of the polling station. It might well be that the
presiding officer might have made a mistake when writing the figure of number of
registered voters.

In their estimation there was no over voting and therefore this category should also
be rejected.

516
ANALYSIS

Before going into the evidence given by the parties in support of their respective
cases, there are some three subject areas that I want to get out of the way. Their
impact on the substantive matter before the court will be seen in the course of
delivery.

BURDEN OF PROOF

I must begin the analysis of this case with the statement that in spite of its nature
and despite all the emotions that this case has aroused, the rules and procedure for
arriving at the conclusion of this case, unless specifically spelt out by C.I. 75are
still the same. So who bears the burden of proof and the burden of persuasion and
what is the degree or standard of proof? Generally speaking, this depends largely
on the case, that is, the facts averred and therefore the facts in issue. In the absence
of express or statutory provisions to the contrary, the ordinary rules that obtain in
civil causes or matters should apply. Generally, the burden of proof is therefore on
the party asserting the facts, with the evidential burden shifting as the justice of the
case demands. The standard or degree of proof must also necessarily be proof on
the preponderance of the probabilities

In the case ofAckah v Pergah Transport Limited & Others [2010] SCGLR 728,
my very able sister Mrs. Justice Sophia Adinyira, JSC, summed up the law on the
burden of proof in civil cases, 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

517
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).”

Even though election petitions seem different it has been held that the laws relating
to the burden of proof and standard of proof are the same as those in civil cases.In
the Nigerian election case of Abubakar v Yar’Adua [2009] All FWLR (Pt 457)
1 SC, the Supreme Court of Nigeria held that the burden is on the Petitioner to
prove, not only non-compliance with the electoral law, but also that the non-
compliance affected the results of the election.

In the same vein, the Canadian case of Opitz v Wrzesnewskyi2012 SCC 55-2012-
10-256, the Canadian Supreme Court held, by majority opinion, that:

“An applicant who seeks to annul an election bears the legal burden of proof
throughout…”

Also, in Col. Dr. KizzaBesigye v MuseveniYoweriKaguta& Electoral

Commission, Election Petition No. 1 of 2001, the majority of the Ugandan
Supreme Court Justices held as follows:

“…the burden of proof in election petitions as in other civil cases is settled. It

lies on the Petitioner to prove his case to the satisfaction of the Court. The only
controversy surrounds the standard of proof required to satisfy the Court”.

As to how this burden of proof is discharged see the cases of Majolagbe vLarbi
1959 GLR1`90 AT PG 192 where OllennuJ repeating his dicta from the case of
Khoury v Richter(unreported)said;

518
“Proof in law is the establishment of facts by proper legal means. Where a party
makes an averment capable of proof in some positive way, eg by producing
documents, description of things, reference to other facts, instances or
circumstances, and his averment is denied, he does not prove it by merely going
to into the witness box and repeating that averment on oath, or having it
repeated on oath by his witness. He proves it by producing other evidence of facts
and circumstances, from which the court can be satisfied that what he avers is
true”

It bears emphasis therefore that unless the burden shifts the petitioners bear the
burden of proof on all matters raised and the standard of proof is on the
preponderance of probability

DEFINITIONS
Elections are complex systems designed and run by fallible humans. Thus, it is not
surprising that mistakes, errors, or some other imperfection occurs during an
election. Because absolute electoral perfection is unlikely and because finality and
stability are important values, not every error, imperfection, or combination of
problems supports an election contest, voids the election, or changes its outcome.
This court must spend sometime to determine whether votes affected by minor
irregularities are nonetheless valid, and if so, separating them from the votes that
are invalid because they are tainted by more serious irregularities.

As indicated in the opening pages of this ruling, the claim of the petitioners is
based on allegations of irregularities, malpractices and downright constitutional

519
violations. These anomalies are such that they cannot be glossed over and that if
they are taken into consideration it would affect the fortunes of the contestants.

Irregularity is defined by the Oxford Advanced Learners Dictionary as follows

“Activity or a practice which is not according to the usual rules, or not

normal: alleged irregularities in the election campaign”

Malpractice on the other hand is defined as “careless, wrong, or illegal behavior

while in a professional job.

Constitutional violation is where a person goes against, or refuses to obey a

provision in the constitution.

From the various definitions it can be seen that while constitutional violations and
malpractices are all irregularities, not all irregularities may be constitutional
violations or malpractices.

The petitioners have isolated essentially four main irregularities as having affected
the elections. While conceding that the isolated irregularities,and even more
irregularities might have occurred, the respondents assert that these
irregularitiesare essentially administrative lapses or infractions that did not affect
the conduct of the polls.

While answering questions under cross examination, Dr. Afari Gyan,the Electoral
Commissioner and principal respondent in this case said, there were several
irregularities that occurred during the elections, even more than the petitioners
have catalogued, but the test should always be whether the irregularities affected
the conduct of the polls.

520
The word irregularity is defined as activity or practice which is not according to
the usual rules or not normal. What in effect this means is that when a thing is done
not in the regular way it is irregular. For example, if election is expected to begin
at 7.00am and it begins at 8.00am or later as happened in several places all over the
country during the 2012 December elections, there was an irregularity; if the
presiding officer is expected to sign as the constitution mandates, though it is a
constitutional violation, it is also an irregularity; when a person knowingly votes
twice against the law, though it is a malpractice, it is an irregularity. Etc.etc.

According to the petitioners when such irregularities occur in any polling station it
brings the results of such polling station into disrepute and the election in that
station becomes tainted or compromised. The results of such polling station should
be annulled and not added to the regularly taken results to taint it. An irregularity is
an irregularity and the results should be seen in the same light.

While conceding that there can be many irregularities,it is obvious that not every
irregularity necessarily affects the conduct of the polls and therefore should call for
an annulment of results. For example starting an election at 10am instead of 7am is
an irregularity, but unless it can be proved that the late start of the polls was
deliberately done to give one party or candidate an advantage over another, or even
deliberately done to deny some voters the right to vote to the gain or to the
detriment of a particular party, such an irregularity cannot, or ought not be used to
annul a regularly taken poll. So, as asserted by the 2nd respondent, the test should
be whether an irregularity affected the conduct of the polls. Incidentally the
petitioners seem to think otherwise.

521
ARICLE 42 OF THE CONSTITUTION AND ANNULMENT OF VOTES

Article 42 of the 1992 constitution provides as follows

“Every citizen of Ghana of eighteen years of age or above and of sound mind has
the right to vote and is entitled to be registered as a voter for the purposes of
public elections and referenda”

The petitioners claim that as a result of some irregularities, an aggregate number of

votes TOTALLING OVER 4 MILLION ARE TAINTED AND THEREFORE
SHOULD BE ANNULLED. Not only should the votes be annulled, the court
should go ahead and declare the winner of the general election based on the
UNTAINTED VOTES. This I daresay is a very bold request for which this
courtwill need a lot of convincing to grant!

To annul a vote is an act of disenfranchising a person and therefore a really big

legal issue and can only be resorted to if a voter engages in an election malpractice
For example PNDC law 284 as amended,provides as follows

Section 29 UNAUTHORISED VOTING

A person who knowingly votes

(a) At an electionat which that person is not entitled to vote, or

(b) More than once at an election,

Commits an offence and is liable on conviction to a fine not exceeding 500

penalty units or to a term of imprisonment not exceeding 2 years or both the fine
and the imprisonment, and is disqualified for a period of five years from the date

522
of the expiration of the term of imprisonment, from being registered as a voter or
voting at an election

An annulment of votes or for that matter disenfranchisement must therefore be

traceable to an offence by the voter. If eligible Ghanaian citizens, ie qualified and
registered, go to queue for so many hours to exercise their constitutionally granted
right to vote, and, assuming their votes become tainted through no fault of theirs,
but through administrative lapses, then it is my strong and considered opinion that
they cannot be disenfranchised with the annulment of their votes. The least the
petitioners could ask for is CANCELLATION of the results. Where it is proved
that the identified administrative lapses affected the Conduct of the Polls, then
voters in such places must be given the second chance to exercise their franchise if
cancelling their votes, can seriously impact the outcome of the general election. By
so doing, governance will be carried out by persons elected by majority of the
people ready and willing to exercise their constitutional right to vote, and not by a
small minority of the people, as is being advocated for by the Petitioners.

Article 1(1) of the Constitution1992 provides as follows;

“The Sovereignty of Ghana resides in the people of Ghana in whose name

and for whose welfare the powers of government are to be exercised in the
manner and within the limits laid down in this Constitution.”

The only way of actualizing this provision is to guarantee universal adult suffrage.
The right to vote as guaranteed by the constitution is paramount and in Ghana this
right has been specifically protected. The cases of TehnAddyv Electoral

523
Commission [1996 97 SCGLR 589and Ahumah Ocansey V Electoral
Commission; Centre for Human Rights & Civil Liberties(CHURCIL) v
Attorney General & Electoral Commission (consolidated) 2010 SCGLR 575
are landmark decisions in the protection of the right to vote.

TheAhumahOcanseycase emphasised that this right to vote is so fundamental that

even prisoners, or persons incarcerated for offending the society, unless
specifically debarred from voting are entitled to exercise their right to vote. In that
case the electoral commission was seeking to rely on a portion of C.I. 12 reg 1d
which, together with section 7(5) of the PNDC LAW284, had the potential of
disenfranchising prisoners by reason of residence. The Attorney General argued
that once the impugned law affected prisoners who had offended society, it was
alright. This Court refused to buy into this argument and ruled per Georgina Wood
CJ that;

“…………the attorney general’s counter argument that the impugned

legislation is reasonably required in the public interest, in that access to prisons
must be restricted, and further that violators of the law must be punished, kept
away from the public, under lock and key, disenfranchised and not to have any
say in who governs them. These, counsel contend, do serve as their just deserts
for causing pain and suffering to others. In short counsel contends the
legislation meets the opportunity test. THIS ARGUMENT, EXAMINEDIN THE
BEST OF LIGHTS I AM AFRAID, WOULD HAVE no place in participatory
democracy, with the guaranteed rights that are enshrined in the constitution”

In the Tehn-Addy case, commenting on the paramountcy of the constitutional right

to vote, this is what Acquah JSC(as he then was) said

524
 “ ….In order to give meaning and content to the exercise of this
sovereign power by the people of Ghana, article 42 guarantees the right to
vote to every sane citizen of eighteen years and above. The exercise of this
right of voting, is therefore indispensable in the enhancement of the
democratic process, and cannot be denied in the absence of a
constitutional provision to that effect”

Per curiam (i) A heavy responsibility is … entrusted to the Electoral Commission

under article 45 of the Constitution, in ensuring the exercise of the constitutional
right to vote. For in the exercise of this right, the citizen is able not only to
influence the outcome of the elections and therefore the choice of a government
but also he is in a position to help influence the course of social, economic and
political affairs thereafter. He indeed becomes involved in the decision-making
process at all levels of governance.”

The right of prisoners to vote was the subject for comment in the Canadian case of
Sauvé v Attorney-General of Canada, the Chief Electoral Officer of Canada and
the Solicitor-General of Canada [2002] SCR 519; 2002 SCC 68,

“The right of every citizen to vote, guaranteed by s. 3 of the Canadian Charter of

Rights and Freedoms, lies at the heart of Canadian democracy. The Law at
stake in this appeal denies the right to vote to a certain class of people – those
serving sentences of two years or more in a correctional institution. The
question is whether the government has established that this denial of the right
to vote is allowed under s. 1 of the Charter as a ‘reasonable limit …demonstrably
justified in a free and democratic society.’ I conclude that it is not. The right to
vote, which lies at the heart of Canadian democracy, can only be trammeled for
good reason. Here the reasons offered do not suffice.”

525
In the course of the judgment in the Ahumah Ocansey case reference was made to
several cases both local and foreign to support the principle that once a right, like
the right to vote, is guaranteed in the constitution, then unless there is an absolute
need to do the contrary, any legislation that seems to take away this guaranteed
right must be viewed with circumspection and frowned upon.

Though the right to vote seems on the surface not to be what is in issue in this
petition, it actually is at the center. What the petitioners are seeking to do is to
annul the regularly cast votes of some citizens of Ghana. From the authorities and
analysis above, it is clear that not only must the courts ensure that voters’
guaranteed right to vote be protected but that that right when regularly exercised
must be protected. Guaranteeing a person’s right to vote without ensuring that the
right once exercised is protected is as bad as preventing him from exercising his
right to vote. On this basis a call for the annulment of votes must be actually
backed by credible evidence of legal infraction on the part of the voter and not on
administrative lapses

IN the case of OPITZ V WRZESNEWSKYI SCC 55,(2012 3 SCR cited by the

respondents the Supreme Court of Cananada said at paragraph 56

“In our view adopting the strict doctrinaire approach creates a risk that an
application under Part 20 could be granted even where the results of the election
reflects the will of the electors who in fact had the right to vote. This approach
places a premiumon form over substance and relegates to the back burner the
Charter right to vote and the enfranchising objective of the Act.”

Par 66 “

“By contrast, if a vote cast by an entitled voter were to be rejected in a contested

election application because of an irregularity, the voter would be irreparably
526
disenfranchised. This is especially undesirable when the irregularity is outside of
the voter’s control, and is caused solely by the error of an election official.”

It is my considered opinion that even if any or all the categories of irregularities as

identified by the petitioners are upheld the results ought not be annulled, since the
said infractions are not traceable to the millions of people who will be
disenfranchised. But rather the results may only be CANCELLED as having being
compromised or tainted by administrative lapses. In that case we should not cancel
the whole Election (including the uncompromised parts), nor should the election be
called based only on the remaining untainted votes, as being suggested by the
petitioners, but the voters and polling stations whose votes are cancelled as a result
of the administrative lapses must be given the second chance to exercise their
constitutionally guaranteed right to vote before the final results are declared.

The petitioners’ novel legal theory of annulling so called tainted votes that would
permit a segment of the population ie. some 4 million voters, to be disenfranchised
finds no place in a democracy built upon principles of inclusiveness, equality, and
citizen participation. The right to vote and thereby partake in governance and
decision making has been fought for by some democrats from of old. Some have
paid the ultimate price to ensure that no category or class of people are
disenfranchised. It is not too long ago that the blacks of South Africa were given
the right to vote. The same thing applies to USA. In some countries women were
given the right to vote not too long ago.We in Ghana have had the universal Adult
suffrage since independence.Even though some countries prohibit prisoners from
voting, in Ghana we don’t. This is how far we have come in our quest for
democratic governance. We should do everything possible to protect this right.
And the least we could do is not to disenfranchise people through technical or
administrative lapses over which they have no control.

527
It is my opinion that the basis of the petitioners’ claim, i.e. the declaration of the
First petitioner as winner after annulment of some 4 million votes, is completely
flawed.

Now let us examine the various heads or categories of irregularities as isolated by

the petitioners.

ABSENCE OF PRESIDING OFFICER’S SIGNATURE.

Article 49 sub clause 3 of the 1992 constitution reads;

“The presiding officer, the candidates or their representatives and in the case of a
referendum, the parties contesting or their agents and the polling agents if any,
shall then sign a declaration stating
a) The polling station; and

b) The number of votes cast in favour of each candidate or question.

And the presiding officer shall there and then announce the results of the voting at
that polling station before communicating them to the returning officer.”

In the light of this constitutional provision it is the contention of the petitioners that
failure to sign by the presiding officer is an infraction that should lead to the
annulment of votes. This is because according to them once the signing is
mandatory the consequence is that the votes do not become valid without the
signature.

I do not think so. Though the article makes signing mandatory, it does not
prescribe any consequences for failure to sign. Looking at the said article critically,
the word shall as used go to show the sequence of events or series of things that
have to be done. And here the sequence is shall sign, shall there then announce the

528
results before forwarding same to the presiding officer.The article only uses the
word shall to denote a series of things to be done and the sequence in which it
should be done. Failing to do it the way suggested by the article makes it an
irregular performance of duty. It is an irregularity that does not go to the roots.
Then the question that has to be asked are (1) has anybody been specifically
adversely affected by this irregularity that should lead to an annulment or even
cancellation of votes regularly cast?

This court’s attention has been drawn to the recent decisions of this court, cases of
where the court strictly interpreted shall in Aricle 181 of the constitution and
concluded that failure to secure parliamentary approval for a loan is fatal as
provided by the constitution.

See the recent cases of Faroe Atlantic. Martin Alamisi Amidu v Isofoton and
Martin Amidu v Woyome

But a critical look at the wording of articles 181 will show clearly that there are
differences in the wording. Article 181 (2) reads

“An agreement entered into under clause(1) of this article shall be laid before
Parliament and shall not come into operation unless it is approved by a resolution
of parliament”

The article carries in its belly its own sanctions. The agreement shall be laid in
parliament and unless carried by resolution of parliament shall not come into
effect. This is not the same asarticle 49 where no consequences are provided for
failure to sign.To strictly interpret the word shall to mean mandatory and therefore
its violation should lead to annulment of votes regularly cast, would lead to a
serious absurdity. I am here persuaded by the modern purposive approach to
interpretation where the intent rather than the bare words as used influence
529
interpretation. To this end the famous quote of Sowah CJ in the Case of is very
much apposite here. He said

“A written Constitution such as ours is not an ordinary Act of Parliament. It

embodies the will of a people. It also mirrors their history. Account, therefore
ought to be taken of it as a landmark in a people’s search for progress. It contains
within it theiraspirations and hopes for a better and fuller life.

The constitution has its letter of the law. Equally the constitution has its spirit.
…….Its language, therefore,must be considered as if it were a living organism
capable of growth and development. Indeedit is a living organism capable of
growth and development as the body politic of Ghana itself is capable of growth
and development. A broad and liberal spirit is required for its interpretation.it
does not admit of a narrow interpretation. A doctrinaire approach to
interpretation would not do. We must take account of its principles and bring that
consideration to bear, in bringing it into conformity with the needs of the time.”

In theKuenyehiaV.Archer[1993-94 2 GLR525 AT 562 Francois JSC said,

“It appears that the overwhelming imperatives are the spirit and objectives
of the Constitution itself, keeping an eye always on the aspirations of the future
and not overlook the receding footsteps of the past. It allows for a liberal and
generous interpretation rather than a narrow legalistic one. It gives room for a
broader attempt to achieve enlightened objectives and tears apart the stifling
straight jacket of legalistic constraints that grammar, punctuation and the like may
impose,”

530
To strictly interpret this article the way the petitioners are seeking to do is to take
the importance away from the voter and giving same to the persons who run the
elections. If the absence of the single signature of the presiding officer can lead to
the annulment of the votes of hundreds of thousands of voters, then the election
ceases to be about the voters and shifts to the presiding officer. So that if a
presiding officer, either from pressure of work, oversight, or plain mischief fails to
sign, then fatally, hundreds of voters are disenfranchised. Again a corrupt
politician needs only to team up with a few hundred presiding officers in an
opponent’s stronghold, and bingo! fortunes are turned. This will be carrying strict
interpretation to absurd limits.

An affidavit filed by one of the petitioners’ witnesses read;

I, Abdulai Abdul Hamid of House No. A77, Gunfong, Pong-Tamale, in the

Northern Region of the Republic of Ghana, and teacher by profession, make
oath and say as follows:

1. That I am a witness of the Petitioners herein and the deponent hereto.

2. That I swear to this affidavit on the basis of information personally known

to me.

3. That on the 7th and 8th of December 2012, the Electoral Commission of
Ghana conducted Parliamentary and Presidential Elections in Ghana.

4. That at all material times I was the presiding officer at Temporary Booth
Chief’s Palace polling station at Pong-Tamale, in the Savelugu
Constituency of the Northern Region of Ghana during the December 2012
Parliamentary and Presidential Elections.

5. That I declared the results thereafter

531
6. That subsequently on the 16th day of February 2013, I received a callon
my cellular phone with number 0246933648 from one Salamatu Osman,
an employee at the district electoral office of the electoral commission, via
telephone number 0372091677.

7. That the said Salamatu Osman informed me that I had not signed the
Statement of Poll and Declaration of results for the office of
president(“pink sheets”), and that she had been instructed by Mr. Ben, the
District Electoral Officer, to invite me to attend the office in order to sign
same.

8. That she further stated that the signature was necessary for the office to
process the documents relating to the payment of my entitlements as a
presiding officer in the December 2012 presidential and parliamentary
elections.

9. That I proceeded on that basis innocently to sign the pink sheet for the
2012 presidential election.

Wherefore I swear to this affidavit in support”

This affidavit put in by the witness of the petitioners is self-explanatory. The

witness did not sign the pink sheet at the polling station as required and he was
later tricked by the representative of the 2nd respondent to sign.Ostensibly, this
affidavit was put in to show that some pink sheets were not signed at the polling
stations and that long after the results had been declared the 2nd respondent was
clandestinely seeking to sign pink sheets. There were two other affidavits
confirming the contents of this affidavit.

532
But the questions that these affidavits fail to answer are why didn’t Mustapha, the
petitioners own witness, sign the document at the polling station? Was it oversight,
pressure of work or plain mischief because he had not been paid? And is he saying
that the whole polling station results should be annulled because he forgot to sign
as a result pressure of work or as away of protesting his not being paid?

It is my considered view and I hold that non-signing by the presiding officer is a

mere irregularity that does not go to the root of the matter. It did not affect the
conduct of the polls and therefore should not lead to the annulment or even
cancellation of votes.

The petitioners claim on this ground is dismissed.

DUPLICATE PINK SHEETS

It is the case of the Petitioners that the Pink Sheets were imported into the country
with numbers embossed on each pink sheet to differentiate it from any other pink
sheets. In that case each pink sheet should bear a different serial number in all
26002 polling stations in the country. However this was not done. They detected
that out of the over 11,000 pink sheets reviewed, over 10000 had their counterparts
or duplicates used instead of their “original” pink sheets. This was done because
the second respondents had intentionally imported more pink sheets with the view
to manipulating the results of the polls. The total number votes being sought to be
annulled under this so called irregularity is over 2.5 million.

The response of the second respondent to this claim is that the petitioners claim has
no basis and not well founded. Yes it is true that each pink sheet has a different
number, but they are not in series and therefore not serial numbers properly so

533
called. The numbers are not security numbers that can be used to track the polling
stations in which they are actually used. So any pink sheet with any number can be
sent to any region, constituency or polling station. Pink sheets are packed at
random and their distribution does not follow any pattern in terms of the numbers
embossed on them.

In their address the second respondent said this category can properly be described
as the weakest link in an already weak chain. I couldn’t agree more. Throughout
the proceedings the petitioners failed to show how this so called irregularity
affected the conduct of the polls. Yes it would have been better if only one set of
27000, or 28000 pink sheets were printed by one printing house and the pink sheets
numbered from one to 28,000. Instead of 2 sets totalling 54,000 printed by 2
separate printers each numbered from 1 to 27,000. So what? Apart from the
financial loss occasioned by the printing of the excess pink sheets, in what way did
this affect the election? The petitioners failed to convince me about the veracity of
their claim as far as this irregularity is concerned and I reject same.

OVER VOTING

The petitioners claim that there were indications that in quite a number of polling
stations there was over voting. And this is evident on the face of the pink sheet.
The petitioners give three main definitions of over voting

1 Where the ballots found in the ballot box exceed the number of ballot papers
issued to the polling station;

2 Where the ballot papers found in the ballot box exceed the number of persons
REGISTERED to vote in the polling station; or

534
3. Where the ballots found in the box exceed the persons actually verified to vote,
i.e.those registered and actually appearing at the polling station, verified and given
ballot papers to vote and actually voting.

According to the petitioners all these figures are verifiable from the face of the
pink sheets. The votes in all such polling stations should be annulled and same
deducted from the overall votes garnered by the parties.

The respondents disputed this three tier definition and said the classical definition
of over voting is where the ballot papers actually exceed the number of persons
actually registered at the polling station. Even then when it comes to over voting
the pink sheet may not be the primary or only source of information. And that if
figures on the pink sheet indicates that the ballot papers found in the box actually
exceed the figure written for the number of registered voters, one will have to cross
check from the actual register of the polling station. It might well be that the
presiding officer might have made a mistake when writing the figure of number of
registered voters.MrAsieduNketiah for the 1st and 3rd respondent denied the
possibility of over voting and said this could be due to the presence of foreign
object in the ballot box which is weeded out at the sorting out stage. In their
estimation therefore there was no over voting and so this category should also be
rejected.

I do not think the petitioners are describing overvote as objects found in the ballot
box. I cannot see how a foreign object as described by the witness be counted as
overvote. If an aggrieved votes tears off an A4 sheet and writes on it THEY ARE
ALL GREEDY BASTARDS, and places same in the ballot box, it is a foreign
object. This is not the type of paper that will feature in the petitioners overvote
column. My understanding of the petitioners over votes is that it relates to the votes

535
declared for candidates and those rejected for cause. That will be A+B in the last
column on the pink sheet against any of the columns already mentioned.

Seen this way I must say that that I agree with the petitioners definitions of over
voting. But this expanded description of over voting is what runs the petitioners
into problems and that led to the two often touted mantras; “you and I were not
there” and “on the face of the pink sheet.”For example on one pink sheet the total
ballots declared for the various candidates, and the rejected ballots were in the
region of 800. But when it came to question A1 on the question paper which was
“What is the number of ballots issued to the polling station”?, the answer was 10.
This pink sheet was selected as one with over votes because of the enormous
difference between the votes found in the box and the papers sent to the polling
station. But if one looks at the very next question, which is “What are the serial
numbers of the ballot papers sent to the polling station?”, the answer there clearly
indicates that there were 10 booklets of 100 leafs each, making 1000. So though
the first answer seems to suggest over voting, there really was no over voting if
one looks at the document properly. And there were several pink sheets with this
kind of problem. That is why Dr. Afari Gyan suggested that the pink sheet should
be read as a document in full and not question by question as the petitioners
seemed to be doing. But Dr. Bawumia preferred, “on the face of the pink sheet”.

Again because of the definition ascribed to the Over voting, any time the answer to
questions AI, B1, and C1 showed a blank, it was set apart as over voting. The
questions are,

A1 “What is the number of Ballots issued to the polling station?

B1 What is the number of voters on the polling station register?

C1 What is the number of ballots issued to voters on the polling station register?
536
The reason for this was that once any of these figures was blank one could not
compare it properly with the total number of ballots in the ballot box. According to
the petitioners this was deliberately done to hide over voting. There were hundreds
of such pink sheets in the over voting category. The respondents on the other hand
suggested that if any of these questions posted a blank answer, there were other
sources where one could then to correct this. For example if B1 shows blank, the
polling station has a register which can be referred to easily to ascertain the correct
figure, so there was no need to rush to declare over votes on that account. Dr.
Bawumia countered with his mantra, the pink sheet is the primary source of
information at the polling station, and that on the face of the pink sheet blank
means zero.

I have no doubt at all that the pink sheet is the primary source of information at the
polling station, after all it is the information on the pink sheet that is collated and
form the basis of any or final declaration. But I definitely do not agree that other
sources may not be referred to for information if any doubt arises. Each polling
station has the official register, and each polling agent has the polling station
register. So if the question B1 has a blank, answer the correct figure is
ascertainable from other sources. There should not be the rush to declare over
votes just because on the face of the pink sheets the column shows blank.

I have noticed that the petitioners have identified some 180 pink sheets where
C1=blank or C1=0. The votes tally on that list alone is over 93,000 votes.

There were also several pink sheets in this category which clearly on second look
did not reflect over voting. While in the box, Dr Bawumia admittedto several such
pink sheets which they had originally selected to contain over voting, actually did
not reflect over voting upon second look. There were some pink sheets on which

537
errors had apparently occurred as a result of carbonation, For example there were
some pink sheets on which in the figures column two candidates were said to have
received 11, but in the words column it was “one”. It could be seen from the
additions that “one” was used in both the words and figures columns, and that if
eleven was used the total in both the figures and words columns would be wrong.
The only plausible explanation for this 11 and “one” is that if the person filling the
pink sheet wanted to deepen the figure 1 and the carbon shifted it would appear as
a second 1 or 11 on the copy. So while the original copy would show a deepened 1
it would appear as 11 on the carbon copies.

However, aside of these many errors which may be described as clerical, there
were also very many pink sheets which recorded cases of actual overvoting.ie
where rejected ballots and valid votes put together were more than persons
actually verified to vote. However sifting the ones actually affected by over voting
from the many affected by the many clerical errors, one is left with very few pink
sheets whose results will not impact positively on the outcome of the overall
results. I will therefore dismiss the claim on account of this ground.

VOTING WITHOUT PRIOR BIOMETRIC VERIFICATION.

For the first time in the history of elections in this country, the 2012 general
elections was supposed to be conducted with identification of potential voters by
biometric verification. The nation spent a lot of time and energy registering eligible
voters biometrically. Biometric registration involved taking the finger prints of
eligible voters in addition to facial recognition. In the round up to the elections a
lot of inter party discussions took place and it was finally decided that voters who
could not be biometrically verified on the election day would not be allowed to
vote even if they had their names in the register. There appeared in the political

538
landscape the popular slogan “NO VERIFICATION, NO VOTING.” C.I.75 reg.
30(2) this slogan. It reads

Red 30(2) The voter shall go through a biometric verification process.

The constitutionality of this CI is being challenged in court, so I will stay off

discussion on this for now.

Be that as it may, constitutionality or otherwise, all the parties went into the
general election with the understanding that no verification, no voting. The whole
concept of biometric registration and verification before voting had been
introduced as a way of reducing to the barest minimum if not eradicate completely,
the incidence of claims of double voting and impersonation that crop up after every
election. It was supposed to increase transparency and enhance people’s
acceptability of the election results. Indeed at one of the numerous press
conferences the electoral commissioner made it clear that at the end of the polls,
where the votes cast exceed the number of persons verified to vote by even one
vote, the results of the said polling station will be cancelled. Based on this
understanding, some voters were turned away from some polling stations and were
not allowed to vote because they could not be verified.

So prevalent was this phenomenon of turning away voters who could not be
verified that the 1st respondent is on record to have made a plea in the electronic
media for the 2nd respondent to review this policy to enable eligible voters be
identified by other means other than by finger print. The basis of this plea,
according to the release, was to avoid a situation where otherwise qualified citizens
are disenfranchised just because a mere machine could not identify them. This
plea, we are told, was not heeded to by the 2nd respondent and people were turned
away by the machines.

539
It is the case of the petitioners however that the 2nd respondent while insisting on
biometric identification in some places, at some polling stations people were
allowed to vote without verification and in some cases everybody voted without
biometric verification. According to the petitioners the evidence for this accusation
can be found on the face of the pink sheet.

In the ballot accounting column (column c) of the pink sheet is a question

C3 What is the number of ballots issued to voters verified by the use of

Form1C(but not by the use of BVD).

The petitioners have tendered quite a number of pink sheets on which this question
had been answered with figures and even sometimes figures reflecting the total
number of voters who cast their ballots in that polling station, indicating that every
person voted without being verified by the biometric devise. To the extent that C.I
75 reg 30(2) says everybody must be verified by the BVD before casting their vote,
and to the extent that some people were turned away either because the BVD had
broken down, or the BVD could not detect their finger print, it was discriminatory
to have allowed some other persons to vote without BVD. Therefore for purposes
of equity, polling stations that had persons voting without BVD should have their
votes annulled. These annulled votes should again be deducted from the votes
declared for the various contestants.

The respondents agreed that the slogan NVNV was actually coined for this election
and was indeed used. And that nobody voted without being verified by the BVD.
The third respondent’s representative Mr. Johnson AsieduNketiah actually opined
that if anybody allowed any voter to vote without the BVD, then that person should
be at ‘Nsawam’(prisons) by now. The 2nd respondent confirmed this by saying that
the agreement on the NVNV had been reached at an IPAC meeting and was

540
enforced to the letter. To this end, polling stations which had their BVDs breaking
down, actually had replacements. Again in about 400 polling stations where BVDs
could not be immediately replaced, the elections were postponed to the next day.

As to how come that the question C3 appeared on the pink sheet despite the
agreement reached at the IPAC to strictly adhere to the NVNV slogan The 2nd
respondent gave a lengthy explanation and concluded that the presiding officers
were not required to fill in that column since everybody was supposed to use the
BVD. All counsel for the respondents that the BVDs were used throughout and so
the figures in C3 did not reflect what actually took place at the polling stations.
They went to the extent of saying in some cases the figures in C3 had actually been
lifted from somewhere and placed there. A lot of theories were propounded for the
figures in C3. They concluded that apart from the face of the pink sheet, the
petitioners had not given any other evidence of voting without BVD, and that their
agents had signed without complaining. The petitioners had therefore failed to
prove that voting took place without biometric verification.

I do not think that the petitioners failed to discharge the burden placed on them.
As was said in the beginning like any civil action the petitioner bears the burden of
proof. The onus was therefore on the petitioners to prove that some voters voted
without going through the BVD. As said earlier the primary source of this election
is the pink sheet. But it does not mean that other sources may not be referred to
disprove writings on the document.The petitioners have pointed to the pink sheet
as their informant that some people voted without prior biometric verification. The
long explanation by the 2nd respondent flies in the face of the recordings on the
pink sheets. They presiding officers were not expected to fill them because nobody
was expected to vote without biometric verification. But they have filled them.
Where did they get the figures from? If the figures reflecting that all voters at a

541
polling station voted without going through BVD was lifted, how about those pink
sheets which show figures unrelated to any other figures on the pink sheet?

We are told that the BVDs still have embedded in their memories data reflecting
the number of voters that were actually verified by each machine. These devices
are still in the custody of the 2nd respondent. One would have thought that the
memories of the BVDs could have settled this problem. But they never felt it
necessary to tender them in evidence.

In the absence of any credible explanation it is my opinion that the petitioners have
discharged the burden of proof placed on them. Inspite of the agreement on the
NVNV, and despite reg 30(2) of CI 75, some people were allowed to vote without
verification. Viewed against the backdrop that some people were actually
prevented from voting because they could not be verified, to have allowed voting
in some polling stations was discriminatory and should lead to cancellation of their
votes.

I will therefore uphold the petitioners claim on this ground only to the extent that
those voters that have their votes cancelled should have the chance to recast their
votes lest they be disenfranchised.

To conclude I hold as follows

1 I dismiss the petitioners claim to annul votes on account of claim of

duplicate serial numbers as frivolous

2 I dismiss the petitioners claim that votes should be declared invalid on

account of the non-signing by the presiding officer. To disenfranchise
hundreds of thousands of voters (through no fault of theirs) because a

542
 presiding fails to sign will not have a place in modern democratic
governance.

3 I uphold the principle that once overvoting is detected in a polling station the
elections there are compromised and should be cancelled but the voters there
should be given a second chance to cast their votes. However I find that in
view of the admissions made by the 2nd petitionerwith regard to some pink
sheets and the many clerical errors, I find that the number of pink sheets
affected in this category has so reduced that they votes affected are not too
significant to make any impact even if they are cancelled. I dismiss the claim
on this ground too.

4 I hold that the petitioners have discharged the burden of proof on them that
voting took place in some polling stations without prior biometric
verification. This was discriminatory since other persons had been turned
away for their inability to be verified. All those stations affected by this
phenomenon should have their votes cancelled and the voters given a second
chance to vote again.

(SGD) P. BAFFOE BONNIE

JUSTICE OF THE SUPREME COURT

543
GBADEGBE J.S.C :
On 7 December 2012, Ghanaians went to the polls in the exercise of their
constitutional right to vote in the presidential and parliamentary elections.
Although the elections were scheduled for one day only, as a result of the
breakdown at some polling stations of biometric verification equipments that
were being used for the first time in our election history, the elections continued
at some polling centres the following day, 8 December 2012.The postponement
of the elections and or its continuation the following day was not unexpected as
indeed, regulation 34(1) b of Public Elections Regulations, 2012 ( CI 75) made
provision to cater for such an occurrence in the following words:

“Where the proceedings at a polling station are interrupted by the breakdown of

the equipment the presiding officer shall in consultation with the returning officer
and subject to the approval of the Commission, adjourn the proceedings to the
following day.”

It is thus not surprising that in the matter herein, no issue has been raised over
the adjournment of the polls as the law had actually contemplated the likely
occurrence of such an event and quite rightly in my thinking made ample
legislative provision for it.

At the end of the elections, the Chairman of the Electoral Commission (the 2nd
Respondent herein) in compliance with the law by means of an instrument under
his hand dated 9 December 2012 declared the 1st Respondent herein as having
been duly elected as President of the Republic of Ghana. From the results
declared, it was plain that this was quite a keenly contested election. The said
declaration was met with disquiet by the NPP whose candidate, the first
Petitioner together with two others, the 2nd and 3rd Petitioners herein, or about
29 December 2012 initiated the petition herein by which the results declared in
the presidential election is being challenged and in particular, a declaration
sought that the 1st Petitioner herein was validly elected as president.

The matter herein has gone through a full scale trial as provided for in the
Supreme Court Rules, CI 16 as amended by CI 74. It repays to mention that the

544
parties have made full compliance with the direction given by us at the hearing of
the application for directions by filing the necessary processes that enabled the
court to give directions for trial in the matter herein. The parties have also
tendered their evidence after which they submitted written and oral speeches to
the court. The delivery herein is an evaluation of the respective cases of the
parties in aid of the court’s determination of the controversy herein. I need
mention that although the petition as issued by the petitioners named only the
first and second respondents, following an application at the instance of the NDC,
it was joined to the matter herein as a 3rd Respondent. The petition herein thus
became a contest between the three petitioners on the one hand and the three
Respondents on the other side of the aisle, so to say. I pause at this stage to
commend counsel in the matter for the industry that they have exhibited in their
effort to assist the court in the determination of this landmark case. I think that
when the history of the evolution of our democracy comes to be written they
would occupy a place in the hearts of many.

Before proceeding further, I think it important to observe that this petition, which
is unprecedented in the life of the Fourth Republic presented the court and the
parties with a unique opportunity to contribute to the development not only of
substantive law but also the practice and procedure of the Supreme Court in so
far as the exercise of its exclusive jurisdiction to determine questions raised
concerning the validity of presidential elections are concerned. This is a huge task
that is conferred on the court by article 64 of the 1992 Constitution that came
into being after several years of military rule that spanned the last day of
December 1981 to January 1993. The return to constitutional rule that was
ushered in by the1992 Constitution brought to Ghanaians the opportunity that
was wrestled from her people more than a decade previously to exercise the right
to elect representatives and a president once in every four years. Before the 2012
elections, elections were held in 1992, 1996, 2000, 2004, and 2008. These
elections have been in the main applauded by the international community as
free and fair and Ghana had on account of these earned a place of pride as the
forerunner of democracy in Africa.

545
 The petition herein, in my thinking, seeks to call in question compliance by the
Electoral Commission, the 2nd Respondent herein with the rules contained in the
various laws-the 1992 Constitution, the Representation of the People Law, PNDC L
285 and its subsequent amendment by PNDCL 296, the Biometric Registration of
Voters Regulations 2012, CI 72, and the Public Elections Regulations 2012, CI 75.
In my view, contrary to the perception of some section of our society about the
resort by the petitioners to court, it is healthy for our democracy as it seeks to
ensure that the electoral rules were implemented at every stage of the electoral
process thereby giving sanctity to the process. As elections are creatures of
statute, the statutes that authorise their holding at stated intervals also provide
for the procedures to be employed on Election Day as well as all matters
reasonably connected therewith including the count of the ballots and the
declaration of results at polling stations, constituencies and on the national plane.
An election in this country therefore must be seen as the working of the various
rules by which effect is given to the invaluable right provided for in article 42 of
the 1992 Constitution in the words that follow shortly:

“Every citizen of Ghana of eighteen years of age and above and of sound mind has
the right to vote and is entitled to be registered as a voter for the purposes of
public elections and referenda.”

It appears that for the purpose of the presidential elections the entire country
constituted one constituency with the Chairman of the Electoral Commission, the
body charged with the responsibility and conduct of all elections being the
returning officer. At every polling station and constituency, however, there were
election officials- presiding officers and agents of political parties and or
candidates who together ensured that the rules of the game, so to speak, were
implemented at every stage of the election process. The role of presiding officers
and the polling or counting agents is provided for by law and serves the purpose
of ensuring transparency in the elections and renders the results that are
subsequently declared acceptable to the citizenry. While the general principles
regarding elections are contained in the 1992 Constitution, the details of the
processes involved are contained in PNDC L 284 (as amended by PNDCL 296), CI
72 and CI 75.
546
As elections derive legitimacy from the various laws that provide for their
exercise, allegations that seek to challenge its regularity must to be good grounds
derive legitimacy from the enabling laws. In my thinking, the 1992 Constitution in
terms of the electoral process is clear on its face, its rationale is plain and the
means employed through it and other statutes to secure its purpose is
reasonable. In this connection, it is observed that the fact that other methods
could have been provided for the purpose of achieving the constitutional
objective is not a proper consideration for this court in so far as the issues that
arise for our decision in this case are concerned. In this delivery therefore, I shall
measure the various allegations that make up the claim of the petitioners against
the applicable laws, and where such an examination reveals a departure from the
said laws in a manner that undermines the basic principle on which our
constitutional democracy is founded then its breach calls for remedies that are
provided at law in order to give integrity and sanctity to the electoral process. In
my opinion, although the claims made by the petitioners are of great import in
our evolving constitutional democracy and is in keeping with the requirements of
the rule of law, as a bye-product of law, however, the demands contained therein
must have their source and resolution within the law. I think these considerations
informed the settling of the two issues for trial in the petition on 2 April 2013 as
follows:

“(A) Whether or not there were violations, omissions, malpractices and

irregularities in the conduct of the presidential election held on the 7th and 8th of
December, 2012.

(B)Whether or not the said violations, omissions, malpractices and irregularities, if

any affected the results of the election.”

In presenting their case, the petitioners categorised the irregularities on which

they relied under broad heads in respect of which pink sheets (official declaration
of results) were exhibited to depositions a that have the effect of evidence in
these proceedings.Additionally, the 2nd petitioner offered oral testimony and was
cross-examined by the respondents. Originally, the number of polling stations
relied upon to sustain the petition were said to be 11,1915 but in answer to a

547
question in court on the last adjourned date, learned counsel for the petitioners
said the total number of polling stations that formed the basis of their claim to
have the presidential elections avoided are 10, 119. That answer is a clear
indication that the number of pink sheets to be considered by the court in this
matter is 10, 119.The designated categories are voting without biometric
verification, over-voting, failure and or absence of signatures by presiding officers
on pink sheets, duplicate serial numbers and voting at locations that were not-
designated as polling stations.

The petitioners contended that the votes involved in these irregularities that
were described to be widespread in nature amounted to over four million
(4,670,504.) Regarding these votes it was also contended that having been
obtained by means of violations, omissions, irregularities and malpractices, they
ought to be annulled and that following such annulment, the first petitioner
herein, Nana Addo Dankwa Akuffo -Addo by a simple arithmetical computation of
the valid votes cast satisfies the requirements of the law to be declared as the
President of the Republic of Ghana. Should these allegations be proved, they are
weighty enough to have the consequence that the petitioners attribute to them.
Not unnaturally, the first respondent, the alleged beneficiary of the widespread
irregularities resisted those claims and contended that he was regularly elected as
President of the Republic of Ghana. The 2nd Respondent who was responsible for
the conduct of the elections made no admission of the issues rose in the petition
and urged the court to uphold the declaration of 9 December 2012 made by its
Chairman. The 3rd Respondent, NDC, on whose ticket the first respondent
contested the disputed presidential elections, also prayed the court substantially
to the same effect as the other respondents.

At the close of evidence in the matter herein, the questions for our determination
turning on the issues that were set down for trial on 2 April 2013 require us to
patiently inquire into the allegations submitted by the petitioners and the
answers thereto by the respondents, and if proved, determine their effect on the
results declared at the various polling stations to which they relate. As the case
herein was fought on the evidence placed before us, our task in keeping with a
long and settled line of authorities is to reach our decision on all the evidence on
548
a balance of probabilities. See: Sections, 10, 11, 12, 13 and 14 of the Evidence Act,
NRCD 323 of 1975.This being a civil case, the petitioners bear the burden of
leading evidence on a balance of probabilities. At this point, I venture to say that
the effect of the acts on which the petitioners rely to sustain their action is one
that must turn on a careful consideration of the applicable statutory provisions
and so stated it would appear that our decision turns not solely on facts but a
mixed question of facts and law. Our courts have over the years determined
several cases in which decisions are based on a consideration of mixed questions
of fact and law and as such this case does not present to us a challenge that is
historical in terms of the evaluation of evidence. While the cause of action in the
matter herein as previously indicated in the course of this delivery is historic, the
approach to decision making is no different from what we have been doing all the
time. The burden of proof in an election petition was recently considered in the
Nigerian case of Buhari v Obasanjo (2005) CLR 7K, in which the Supreme Court
said:

“ The burden is on petitioners to prove that non-compliance has not only taken
place but also has substantially affected the result………There must be clear
evidence of non-compliance, then that the non-compliance has substantially
affected the election.”

Continuing, the Nigerian Supreme Court further said:

“He who asserts must prove such fact by adducing credible evidence. If the party
fails to do so its case will fail. On the other hand if the party succeeds in adducing
evidence to prove the pleaded fact it is said to have discharged the burden of
proof that rests on it. The burden is then said to have shifted to the party’s
adversary to prove that the fact established by the evidence could not on the
preponderance of evidence result in the court giving judgment in favour of the
party”

The recent Canadian case of Optiz v Wrzesnewskyj (2012) SCC 55-2012-10-256

similarly observed of the burden of proof as follows:

549
“An applicant who seeks to annul an election bears the legal burden of proof
throughout………….”

The case of Buhari V INEC [2008] 4 NWR 546 at 565 also affirms the above
pronouncements on the burden of proof as follows:

“Where a petitioner makes non-compliance with the Electoral Act the foundation
of his complaint, he is fixed with the heavy burden to prove before the court, by
cogent and compelling evidence that the non-compliance is of such a nature as to
affect the result of the election. He must show and satisfy the court that the non-
compliance substantially affected the result of the election to his disadvantage.”

Courts in these jurisdictions were not alone in expressing the burden of proof in
an election petition in the above terms. In the recent presidential election dispute
in Kenya numbered as Petition No 5 of 2013 and entitled…RAILA ODINGA v The
INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION AND 3 Others AS
CONSOLIDATED WITH PETITIONS NUMBER 3,Entitled: MOSES KIARIE KURIA and 2
Others v THE INDEPENDENT ELECTORAL COMMISSION and Petition no 4 Entitled:
GLADWELL WATHONI OTIENO and Another vAHMED ISSACK HASSAN and 3
Others , the Supreme Court in an unreported judgment dated 30 March 2013 (
the full reasons therefor being delivered on 16 April 2013) expressed itself
substantially in the same words as follows:

“There is apparently, a common thread in the foregoing comparative

jurisprudence on burden of proof in election cases. Its essence is that an electoral
cause is established much in the same way as a civil cause: the legal burden rests
on the petitioner, but depending on the effectiveness with which he or she
discharges this, the evidential burden keeps shifting. Ultimately, of course, it falls
to the court to determine whether a firm and unanswered case has been made.

We find merit in such a judicial approach, as is well exemplified in the several

cases from Nigeria. Where a party alleges non-conformity with the electoral law,
the petitioner must not only prove that there has been non-compliance with the
law, but that such failure of compliance did affect the validity of the elections. It is
on that basis that the respondent bears the burden of proving the contrary. This

550
emerges from the long-standing common law approach in respect of alleged
irregularity in the acts of public bodies. Omnia praesumntur rite et solemniter
esse acta: all acts are presumed to have been done rightly and regularly. So, the
petitioner must set out by raising firm and credible evidence of public authority’s
departures from the prescriptions of the law.”

Although the above decisions are of persuasive effect only, I think that the
exposition of the applicable burden of proof is in no way different from that
required of petitioners in an election case having regard to the provisions of the
Evidence Act, NRCD 323 particularly sections 10- 14 and I propose in this delivery
to be guided thereby. Having stated the task of the court in terms of the claim
before us, I now pass to consider the various categories of irregularities on which
the petitioners claim to relief is based.

In opening the consideration, I shall commence with that category which in my

thinking and indeed, on the petitioners’ case raises issues regarding the largest
number of votes that aggregate to a little below three million votes. The basis of
this head of claim is that the 2nd Respondent in issuing out pink sheets on which
the collated results at the various polling stations were declared did so in
duplicates and in some cases in triplicates thereby affecting the integrity of the
elections. According to the petitioners, the said pink sheets should have been
unique to the polling stations and numbered serially so that no number was
repeated at any of the over 26, 000 polling stations at which the presidential
elections of 7th and 8th December 2012 was held. In the course of his evidence,
the 2nd petitioner, who was designated by the first respondent as his Vice
Presidential Candidate on the ticket of the NPP admitted under cross examination
that the complaint relating to the serial numbers was not derived from any
constitutional or statutory infraction but as the numbers were huge they were
serious and inferentially must have affected the outcome of the elections.

It is observed straightaway in respect of this head of complaint that although

with hindsight one might be tempted to appreciate the reasoning inherent in it, as
elections are created by statute and contested on rules and regulations that are
widely acknowledged by all, it is not competent for anyone to raise as a ground of

551
complaint a matter which is not known to the laws by which the elections were
regulated. The contention regarding serial numbers though apparently attractive,
appear to me on closer examination to be untenable. Interesting as the complaint
relating thereto tends to be particularly in view of the numbers to which they are
said to relate, the constitution and the subsidiary laws passed thereunder have
provided very clear rules by which our elections are to be guided and it is only the
non-observance of any of those clearly established rules that can properly come
within the designation of an irregularity whether in the nature of an omission,
violation or a malpractice. I think that the word irregularity is synonymous within
the context of this case with the other words commonly associated with it in the
claim before us. For a better understanding of the point being made in relation to
the word “irregularity”(ies) and those associated therewith, reference is made
to the use to which it is employed in ordinary language by a reference to the
meaning as provided in Oxford Advanced earners Dictionary ( International
Student’s Edition) at page 790 thus:

“an activity or practice which is not according to the usual rules, or not normal;
alleged irregularities in the election campaign”

Similarly, the word “violate” as defined at page 1642 of the same Dictionary
means “to refuse to obey a law, an agreement etc.” And a “malpractice” means a
wrong or illegal practice. In view of the fact that the associated words all mean
that which is contrary to rules or laws, I propose in this delivery to use the word
irregularity to refer to any such word. In doing so, I do not think that I do injustice
to any of the parties as an irregularity is one whether called by the description a
malpractice, violation and or an omission, the later which denotes failing to do
that which should be done or lawful.

Further to the above, the evidence of the petitioners unfortunately did not place
before the court in what manner the mere repetition of the slight number of
duplicated pink sheets that was proved in evidence affected the declared results.
There was no challenge to the fact that the results declared were in respect of
elections held at designated polling stations. Also not in dispute is that there
occurred no infraction or violation of any of the electoral laws. Added to these,

552
none of the results declared at any of the polling stations is under challenge. It is
observed that the only features that the law insists on in relation to the ballots
and elections are the serial numbering of ballot papers and the allocation of
polling stations to each person on the electoral register such that no registered
voter is enabled to exercise his franchise more than once in order to give real
meaning to the right to vote that is provided for in article 42 of the 1992
Constitution. In my view, a fair reading of the constitutional provisions on the
electoral processes reveals that it is premised on the right to vote according to
one’s choice. This necessarily implies that it is only when that right has been
infringed by the arrangements put in place at any public elections that the results
can be annulled. The category of irregularity under consideration does not come
within the scope of the Constitution and indeed any other law in force in Ghana
to which reference could be made. I think this should be enough to dispose of the
grounds turning on serial numbers.

In my view if the actors in the political scene consider the issues arising from the
serial numbers that have just been considered of some importance to the
integrity of the electoral process then they should consider for the purpose of
future elections the adoption either by way of an amendment to the existing
regime of laws on elections, or by a clear understanding and or agreement
between all the stakeholders in our electoral system that serial numbers of pink
sheets be better protected in the same manner as is the case regarding ballot
papers and polling stations. Until then, the complaint regarding serial numbers in
the form that they have been revealed in the petition herein is a constraint that is
unknown to the law and as such lacks the nature of an irregularity and
accordingly, I am unable to yield to it as a legitimate ground.

I next turn my attention to the category which concerns over-voting. In the case
presented to us in support thereof, the petitioners based their claim on two
interpretations. The first one is when the number of ballot papers at the end of
the elections exceeds the number of registered voters at the polling station. The
second instance, it was contended arises when there is excess of ballot papers
over the number of ballots issued at the polling station. To prove their claim of
over voting, the petitioners relied on entries on the pink sheets at the end of the
553
elections at the various polling stations. No reference was made to the register of
voters at any of the polling stations to sustain this ground of complaint. On the
contrary, great reliance was placed on portions of the pink sheets which were
required to be filled by the presiding officers in answer to questions numbered as
A1, C1, C3 and C6. The questions that presiding officers were required to answer
are as follows.

C1: What is the total number of ballots issued to voters on the polling station
register?

C3: What is the number of ballots issued to voters verified by the use of Form 1C
(but not by the use of BVD)?

C6 asks a question that provides a formula that adds C1, C2, C3 and C4 to get an
aggregate that must be equal to A1, the total number of ballots issued to the
polling station. From the two interpretations placed before us, it is clear that they
each seek to protect the integrity of the electoral process. It is also plain that as
the total number ballot papers issued at any polling station is based primarily on
the registered list of voters both interpretations seek to ensure that no person is
enabled to vote who is not on the register of voters. Although the word over vote
and or over voting do not come within any of the specifications in the electoral
laws, it does appear to me that as a matter of common sense, votes that come
within any of the two interpretations are evidence of over votes. In support of
their case, it looks to me that as the petitioners did not rely on the list of
registered voters at the various polling stations, they relied mainly on the answer
to C3- the total number of ballots issued to a particular polling station. I think that
the exhibits in the MB-C series were offered to prove this. And in the evidence to
sustain this head of irregularity, the petitioners case appears simply to be that
whenever the ballots cast as found in the ballot box exceed the ballots issued
then there is an over vote for which reason the results must be annulled. In this
regard, great reliance was placed on the information contained in the pink sheets
and in particular the space provided for ballot accounting.

In question C6 in the ballot accounting section of the pink sheets is a formula that
aggregates C1, C2, C3 and C4 to reach a total that must be equal to the total
554
number of ballots issued to a station, A1.But from the available evidence, there
are matters of great weight, which render it unreliable to rely on the second
interpretation of over voting on which the claim of the petitioners is planked.
When one carefully peruses the ballot accounting section of the pink sheets in
evidence before us, the question numbered C6 has a formula provided by which
the aggregate of C1, C2, C3, and C4 is to be equal to A1, the total number of ballot
papers issued to the polling station. A careful reading of the sheet reveals that C5,
unused ballots has been left out of the constituent elements of C6 that is to be
equal in number to A1. In the face of this obvious error that was admitted by the
Chairman of the Electoral Commission in the course of his oral testimony, it is
interesting if not surprising that notwithstanding the absence of C5 which had the
effect of making it impossible going by the formula provided to have C6 being
equal to A1, most of the pink sheets were filled for the purpose of having C1 +
C2+ C3+ C4 making up C6 that should be equal to A1.

As the formula provided in C6 is incorrect it stands to reason that when the

question to which it relates is answered it cannot be right. I am of the opinion
that this is in an area of arithmetic, this is a classic instance of the convergence of
an answer in arithmetic converging with the oft quoted statement that you
cannot put something on nothing as it cannot hold. Therefore, the objective
sought to be attained by way of ballot accounting cannot be achieved. This, in my
view renders the interpretation of over voting that leaves out unused ballots, C5
out of the equation not worthy of the great reliance that is sought to be placed on
it. Clearly, in the midst of this many presiding officers must have transferred the
missing information elsewhere in order to get a healthy balance sheet regarding
the ballots at the end of the polls. In this regard, I am of the opinion that utilising
the portion on the pink sheets for the purpose of ballot accounting is quite
unreliable. One needs to be more than a human being to be able to achieve a
balance on the sheet but many attempted to do this without taking account of C5.
In the circumstances the question that arises is: Can the Court rely on the answers
therein to determine over votes without a process of careful tally of the ballots
cast? I think that in view of the incorrect formula and the consequences flowing
from it one needs evidence beyond the pink sheets to prove the allegation of

555
irregularity to which they relate. The question of an over vote in the
circumstances not being a matter that is plain from the face of the pink sheets is
a matter which could be established only by evidence through a careful inquiry
under the law through the process of ballot accounting to enable such ballots to
be rejected.

Again from the question in C6, C1 and C3 are part of the elements to be added
but as can be seen from C3 since no voter was to use form 1C at the polls, the
answers filled therein must relate to persons already on the polling station
register-C1. This means that at the end of the poll when they are added as the
formula has provided, there would be double counting which might tend to
create the impression of over votes although in fact the error is traceable to the
questions posed on the pink sheets. In my view the pink sheets must if they are to
be used in the 2016 election undergo a careful weeding out of the obvious errors
to make it serve the purpose for which they were intended. The effect of these is
that the claim to over votes cannot be made without going through the process of
ballot accounting to eliminate the obvious errors that are intrinsic in the
questions that are asked on the pink sheets and the answers thereto. It is in this
regard that the role of the polling agents comes up for consideration.

In my opinion as agents for the petitioners who signed all the pink sheets in
evidence without exception, although by Regulation 35 (4) they can withhold
their signature and provide reasons therefore, their conduct in signing the
declarations means that in their view that the entire process of voting was
regular. These signatures bring into being the evidential attribute provided for in
section 26 of the Evidence Act, NRCD 323 of 1975 which provides as follows:

“Except as otherwise provided by law, including a rule of equity, when a party

has, by his own statement, act or omission, intentionally and deliberately caused
or permitted another person to believe a thing to be true and act upon such
belief, the truth of that thing shall be conclusively presumed against that party or
his successors in interest in any proceedings between that party or his successors
in interest and such relying person or his successors in interest.”

556
I think that having signed the declared results that were forwarded to the
presiding officer of the disputed elections, the Chairman of the Electoral
Commission that was acted upon in computing the results, the said conduct
creates a conclusive presumption that by the clear provisions contained in
section 24(1) has the following attribute.

“Where the basic facts that give rise to a conclusive presumption are found or
otherwise established in the action, no evidence to the contrary to the
conclusively presumed fact may be considered by the tribunal of fact.”

By the rules of evidence, we are precluded from considering any other fact to the
contrary. I also venture to say that issues relating to elections are intended to be
quickly resolved and that the procedure laid down in Regulations 35-37 of CI 75
serves the purpose of ensuring that the votes counted satisfy the various rules
laid down for the conduct of elections. It is observed that the estoppel in this
case relates to a fact the occurrence on which the question of law turns and as
such this pronouncement does not seek to lay down that when a question purely
of a matter of law arises there can be no estoppel raised to relieve one from the
consequences of for example illegality. In my view, when there is a statutory right
in persons to withhold their signature from the validity of an act by objecting
thereto, their unequivocal act in signing would operate to create an estoppel in
the nature of “unattackable validity” as was said in the United States decision in
the case of Holmberg v Jones, 7 Idaho 752, 758-759, 65 Pac 563, 564.

See also: (1) Armstrong v King, 281 Pa. 207, 126 Atl. 263.

Further, I have no doubt that, if indeed, there were over votes in the disputed
elections as the petitioners allege by resort to the elaborate procedure under the
Regulations they would have been discovered and rejected in the course of ballot
accounting subject to the right of appeal that is conferred on an aggrieved party
under Regulation 38 of CI 75. I do not think that it is proper for us to ignore the
laid down procedures provided by the electoral laws in the absence of compelling
evidence to the contrary. I think it is important that we give effect to the
legitimate expectations of the law in this matter.

557
Closely linked with the above is the category placed before us in the nature of
voting without biometric verification. According to the petitioners this was
deductible from the answers to question C3. But, the unchallenged evidence of
the Electoral Commissioner was to the opposite effect and destroys any value
that one might wish to place on entries in C3 as Form 1C was by agreement with
the political parties not to be used for voting. The evidence which is not
controverted was to the effect that Form 1C was originally intended to be used by
registered voters who though issued with ID cards had their biometric data lost
due to no fault of theirs. I accept the explanation offered by the Chairman of the
Electoral Commission as a genuine attempt to prevent the disenfranchisement of
registered voters. It is therefore plain that those portions of the pink sheets were
filled in error and cannot be the basis of any legitimate attack on the regularity of
the polls as conducted.

Again, in the course of the trial it became clear that the process of biometric
verification that was provided for in regulation 30 was captured by the
verification equipment and as such the primary evidence on whether or not a
voter was verified before voting was recorded therein. In such a case, I am
surprised that the information regarding the important process of verification is
sought to be proved by reference to C3 only. I am unable to accept that piece of
evidence as the primary evidence as it is in its nature secondary. In order to be
able to rely on the pink sheets as evidence of what they purport to be, the
petitioners ought to have shown that the better or best evidence to which they
relate are not available. See: Lucas V Williams & Sons [1892] 2 QB 113 at 116
Primary evidence, in my thinking relates to a fact from which legitimate
inferences as opposed to conjecture might be made. For this purpose, even the
originals of the pink sheets belong to the category of secondary evidence as the
information they seek to prove is obtainable in the best form in the register of
voters at polling stations and the biometric verification equipment. The record of
list of voters verified by the biometric verification equipment is the primary
evidence and it is the one from which the information contained in the pink
sheets was made. Proof of that information to be of evidential value must satisfy

558
section 163 of the Evidence Act, NRCD 323 of 1975. I quote hereunder the said
section in its entirety.

“(1) An original of a writing is the writing itself or any copy intended to have the
same effect by the persons executing or issuing it.

(2) An original of a writing which is a photograph includes the photographic film 9

including a positive, negative or photographic plate) or any print made therefrom.

(3)If information contained in writing is stored in a manner not readable by sight,

as in a computer or a magnetic tape, any transcription readable by sight and
proved to the satisfaction of the court to accurately reflect the stored information
is an “original” of that writing.”

The purpose of the above rules is to enable the court as the trier of fact and in
keeping with the prime duty placed on it under section 2 of the Evidence Act to
decide all questions of fact. By not placing the best or primary evidence before
the court, the petitioners have sought their inferences from the information that
is available elsewhere to be the basis of our decision. But that is not sanctioned
by law. The rule of evidence to which reference is made here is that inferences
about irregularities can be drawn from facts, but not from inferences. As the said
record of the voters verified at every polling station is available and capable of
proof in the manner acceptable, I am unable to fall upon information from pink
sheets that are based on some other primary source as evidence of irregularity.

There is yet another reason that renders the evidence of voting without biometric
verification unproven. It is this. Pursuant to the court’s direction as to the mode
of tendering evidence in the matter herein, the 3rd Respondents had filed on its
behalf several affidavits by persons who voted at various polling stations in the
country. The content of those depositions that were on oath and constitute
evidence in this matter was that before they went through the process of voting
they had been verified in accordance with the requirements of regulation 30 of CI
75. The petitioners, who bore the initial burden of proof on the allegation of
absence of biometric verification, unfortunately did not file any process that has
the effect of challenging those depositions. The effect of this is that in the face of

559
the depositions by persons who actually voted at some of those polling stations
and testified from their own knowledge to what actually they saw and
participated in, the evidence of the 2nd Petitioner who was not at any of those
polling stations cannot be preferred. I think it is a basic rule of evidence that in
considering the credibility of a witness one of the factors to be taken into account
is “the capacity of the witness to perceive, recollect or relate any matter about
which he testifies”. See: Section 80(2) d of the Evidence Act, NRCD 323 of 1975.

One question that the failure by the petitioners to make available a single
affidavit from a person who was present at any of the polling stations continually
brings up is why were they not called? Since the petitioners had polling agents at
all the polling stations as appear from the pink sheets exhibited before us, the
reasonable inference therefrom is that the said agents are available. It being so,
the failures to have them testify to affidavits in support of the allegation of
absence of biometric verification has a decisive evidential attribute. The
circumstances of this case in as far as the positive allegation of absence of
biometric verification is concerned is that those agents have a duty to speak in
the face of the depositions made by witnesses for the Respondents and as such
their silence has the effect of rendering the version testified to by their
adversaries unchallenged and also deemed to be an admission. See: BESSELA v
STERN (1877) 2 C P D 265.

Then there is the evidence that the disputed elections were postponed to a
second day, 8 December 2012 at polling stations where the verification machines
had broken down. A legitimate inference to be made from this unchallenged fact
is that voting at all polling stations took place after biometric verification of those
entitled to vote. In so holding, I do not disregard the fact that the elections that
are disputed arose out of the exercise of official acts and are presumed by section
37 of the Evidence Act, NRCD 323 of 1975 to have been regularly conducted thus
requiring any person who alleges to the contrary to lead credible evidence to
sustain the allegation to the contrary.

The next category that I turn my attention to arises out of the failure or absence
of presiding officers to sign the results declaration forms after the holding of the

560
polls in dispute. In support of this head of claim, the petitioners relied on article
49(1), (2) and (3) of the 1992 Constitution of the Constitution as follows:

“(1) At any public election or referendum, voting shall be by secret ballot.

(2) immediately after the close of the poll, the presiding officer shall, in the
presence of such candidates or their representatives and their polling agents as
are present, proceed to count, at the polling station, the ballot papers of that
station and record the votes cast in favour of each candidate or question.

( 3) The presiding officer, the candidates or their representatives and, in the case
of a referendum, the parties contesting or their agents and the polling agents if
any, shall then sign a declaration stating-

(a) the polling station; and

(b) the number of votes cast in favour of each candidate or question; and the
presiding officer shall, there and then, announce the results of the voting at that
polling station before communicating them to the returning officer.”

A careful reading of the above provisions reveals quite clearly that the duty that
it creates is not exclusive to only the presiding officer and involves not only the
execution of the declaration of results but beyond that openly announcing the
results and communicating them to the returning officer who is the Chairman of
the Electoral Commission. In my view, the duty is collective and when an
allegation turning on the absence of the signature of the presiding officer is
raised in any proceedings subsequent to the declaration of the results as we are
witnessing in the petition, the court must consider the nature of the irregularity in
question in relation to the entire constitutional provision as well as other
provisions of the Constitution on electoral laws in order to give a meaning that
advances the purpose for which those provisions were made. It is not proper for
the court to look at the act in isolation as the petitioners have invited us to do in
these proceedings. In fact, in presenting their addresses in the matter herein
reference was made only to the requirement regarding the signature of the
presiding officer without any mention of the duty that is similarly placed on the
polling agents and or representatives of the candidates. Perhaps, this was due to
561
inadvertence and I have no doubt that if learned counsel for the petitioners had
considered the provision in question in its entirety, he would probably have come
to the view that the meaning of the words that he pressed on us in this matter is
not the true meaning. We are in this case confronted with the holding of
presidential elections and it is of the utmost importance that nothing be done by
this court that has the effect of disenfranchising the several voters who took part
in the elections on grounds that are purely technical and administrative. The
procedural approach that is urged on us by the petitioners does not commend
itself to me and I prefer to adopt the substantive approach in a matter that
touches and concerns no mean a right as the right to vote. Perhaps, because our
electoral history has not had the experience of other jurisdictions where for
several years a certain section of the population was not entitled to vote, we tend
to take its conferment on us as a people lightly. The substantive approach has
been adopted by many jurisdictions and indeed the majority in their judgment in
the recent Canadian case of OPTIZ v WRZENEWSKYJ [2012} SCC 55-10-256 said it
well and properly as follows:

“Lower courts have taken two approaches to determining whether votes should
be invalidated on account of irregularities. Under the strict procedural approach,
a vote is invalid if an election official fails to follow any of the procedures aimed at
establishing entitlement. Under the substantive approach, an election official’s
failure to follow a procedural safeguard is not determinative. Only votes cast by
persons not entitled to vote are invalid. The substantive approach should be
adopted, as it effectuates the underlying Charter right to vote, not merely the
procedures used to facilitate that right.”

The approach adopted in the above case has also met with the approbation of
courts in the United States of America where courts have held that although
election statutes are mandatory and compliance is expected not all compliance
failures automatically void an election, especially if the failure is not challenged
until after the election. Accordingly, courts construe acts that are not challenged
until after elections as directory, which allows the court to overlook harmless
compliance failures unless one of the following conditions applies:

562
 (a) explicit statutory language states that the provisions are mandatory,

(b)explicit statutory language specifies the election is voided because of the

failure,

(c)the violation affected an essential electoral component, or

(d) the violation changed the election’s outcome or rendered it uncertain.

See (1) Henderson v Maley, 806 P. 2d 626, 630 (Okla. 1991); (2) Don v Mc Cuen,
797 S. W. 2d 455, 456 (Ark. 1990); (3) D’Amico v Mullen, 351 2 Ad 101, 104 (R. I.
1976).

Similarly, in the area of legislation regarding requirements of the Constitution that

utilise the word “ shall”, Courts in the United States of America have tended to
hold that the mandatory requirement means substantial and not complete and
literal compliance. See: (1) Louiseville Trust Co v Morgan, 180 Ky. 609, 203 S. W.
555; (2) Commonwealth v Griest, 196 Pa. 396, 416; (3) Armstrong v King, 281 Pa.
207, 126 Atl. 263. In my view, if such an interpretation could be given regarding
the exercise by the legislature of a power conferred on it under the constitution
to make laws on behalf of the sovereign people of the United States of America
then by parity of reasoning as regards merely administrative acts such as the
failure to sign pink sheets that do not raise any issue that calls in question the
totality of votes declared at a polling station such a failure cannot operate to
deprive the declared results of validity. I think to accede to this urging would be
subversive of the right to vote and treating its exercise as not being as important
as the breach to which the absence of signatures relate. The right to vote
according to one’s choice is in my opinion the fundamental pillar of our
constitutional democracy and should not be trivialised.

The suggested approach has been given statutory endorsement in section 20 (2)
(b) of Representation of People Law, 1992 PNDC law 284 as follows:

“Despite sub-section 1, where at the hearing of an election petition the High

Court finds that there has been a failure to comply with a provision of this Act or
of the Regulations, and the High Court finds

563
(1) that the election was conducted in accordance with this Act and
Regulations, and

(2) that the failure did not affect the result of the election, the election of the
successful candidate shall not, because of the failure be void and the successful
candidate shall not be subject to an incapacity under this Act or the Regulations”.

Although the court to which reference is made above is the High Court, the
amendment to the law that is contained in PNDC Law 296 makes the application
of section 50 of the law to cover all public elections. The said amendment, which
was just to substitute and or insert new provisions in the original law, PNDC law
284 in section 2 (c) provide thus:

“by the substitution for the meaning of “election” in section 50 of the following-

“election” means any public elections”

From the amendment, it is plain that the previous meaning in section 50 of PNDC
law 284 that meant “an election to elect members of Parliament” was at an end
and that word thereafter refers to all public elections including presidential
elections. It being so the substantive and or purposive approach in PNDCL 284
that I have earlier on referred to in this delivery has to guide us in our decision. I
think that the law maker must have been inspired by the substantive approach in
jurisdictions outside Ghana, which though not binding on us but of persuasive
effect only were delivered in countries with a long and established history of of
constitutional democracy .In my view the approach that considers the nature of
the irregularity and its likely effect on the election is quite frankly preferable to
the procedural approach that looks only at the breach of a provision without
more. In fact, even in the rules of court of the High Court there has been since the
coming into being of the High Court (Civil Procedure Rules), 2005, CI 47 a
legislative shift from the purely technical approach to the substantive approach
that is embodied in Order 81 of the Rules. This approach is purposive as it
attempts to unravel the objective that the law was intended to achieve and to
effectuate same. In the case of Ex parte Yalley [2007-2008] SCGLR 512 at 519,
Georgina Wood JSC ( as she then was) observed as follows:

564
“It is well established, that as a general rule, the correct approach to construing
statutes is to move away from the literalist, dictionary, mechanical or
grammatical to the purposive mode. Admittedly, there may be instances where
the ordinary or dictionary or grammatical meaning of the words or phrases yield
just results and there remains little one can do about that. Even so, it can be said
that the purposive rule is embedded in the grammatical rule. In other words, the
ordinary meaning projects the purpose of the statutory provision and so readily
provides the correct purpose-oriented solution. Indeed, the purposive rule of
construction is meant to assist unearth or discover the real meaning of the
statutory provision, where an application of the ordinary grammatical meaning,
produces or yields some ambiguous, absurd, irrational unworkable or unjust
result or the like.”

Several decisions of our courts have over the years adopted the purposive and or
substantive approach to construction of statutes in our jurisdiction. Reference is
made to a few such instances. (1) Tuffuor v Attorney-General [1980] GLR 367; (2)
Asare v Attorney- General [2003-2004] 2 SCGLR 823; (3) Ampiah- Ampofo v
Commission on Human Rights and Administrative Justice [2003-2004] 1 SCGLR
227; (4) Republic v Fast Track High Court; Ex parte Commission on Human Rights
and Administrative Justice [2007-2008] SCGLR 213 .

These developments are not accidental but intended to emphasise the

substantive approach in our jurisdiction. Therefore, in my thinking a mere breach
of a constitutional provision does not by itself result in invalidating an election but
it must be proved of the said non-compliance that it has materially affected the
declared result at the election. The failure to sign the results sheets in question
not having been proved in the slightest manner to have tainted the election or
the results declared should be held to be directory and not mandatory. I do not
think that we can adopt an approach to the interpretation of election laws that is
not informed by the experience of jurisdictions that have a considerable
jurisprudence that has facilitated the growth of strong and enduring democracies
that we aspire to achieve. Democracy is an evolving phenomenon and elections
cannot be perfect so when we are faced with the consideration of irregularities
that are alleged to have occurred in an election, we should exercise a reluctance
565
in striking down every single vote just by reference to a provision of the law. On
the contrary, the irregularity must have affected the integrity of the elections. The
substantive approach serves the same purpose as the purposive approach to the
interpretation of statutes that our courts have come to embrace in several
decisions in this country. See: Fitch v Stephenson [2008] EWHC 501, Para 40

The interpretation of article 49 of the constitution that has been urged on us in

these proceedings does not commend itself to me. That interpretation seeks to
constitute presiding officers into a special class of actors in the electoral process. I
am unable to understand that although they actually presided over the elections
and the counting of the ballots and caused polling agents to sign the declaration
of the results, which they thereafter openly announced to the public and had a
copy thereof posted at the polling station by merely not signing the results
sheets, the entire process that but for this singular act omission complied with the
law should be invalidated. I think that such an approach is not rooted in shared
common sense and undermines the entire process of elections by having innocent
voters disenfranchised on purely technical grounds. It is observed that election
statutes are to be construed liberally in order to give effect to the expressed wish
of the electorate. It being so, rules that are provided to effectuate constitutional
rights should not be applied purely technically as though they were mathematical
formula. I am of the opinion that the evidence placed before us clearly points in
the direction of a substantive approach unblinded by strict adherence to
technicalities. After all, the presiding officers are known and available within the
jurisdiction so if one may ask the question why they were not called to testify?
Within the context of the entire role to be played by the presiding officers, the
requirement to sign the results is directory and not mandatory; to hold otherwise
would enable a purely administrative act that does not detract from the basic
principles of an election to supersede the substantive exercise of the right to vote
in the manner circumscribed by law.

Then there is the claim, which concerns voting at undesignated polling stations.
The uncontroverted evidence before us is that the petitioners assigned poling
agents to those polling stations. It being the case, I think that the elections held at
those locations not having been proved to have suffered in the slightest degree
566
from any breach of the rules and regulations by which the presidential elections
were held, there appears to be no substance in this ground. In my thinking, this
ground like that turning on duplicate polling station code numbers raise no point
of relevance for our consideration in these proceedings.

For these reasons, I am unable to yield to the reliefs set out in the petitioners’
demands before us and proceed to dismiss same. In the result, the declaration
under the hand and signature of the Chairman of the Electoral Commission dated
9 December 2012 and numbered as CI 80 is hereby declared valid.

(SGD) N. S. GBADEGBE

JUSTICE OF THE SUPREME COURT

567
V. AKOTO-BAMFO (MRS) JSC:
On the 9th of December 2012,Dr. Kwadwo Afari Gyan, the Returning Officer for the
December 2012 Presidential Elections, and who represents the 2nd respondent in
these proceedings, returned the 1st Respondent herein John Dramani Mahama, as
having been validly elected President of the Republic of Ghana.

Thereafter, on the 11th of December 2012, the Declaration of President-elect

Instrument 2012, C.I. 80 was published under the hand of the said Returning
Officer.

Being naturally aggrieved, the Petitioners herein, Nana Addo Dankwa Akuffo,
Addo Dr Mahamudu Bawumia and Mr. Jake Obetsebi- Lamptey; the Presidential
Candidate, his running mate and the Chairman respectively, of the New Patriotic
Party filed the instant petition praying, inter alia, that the election be declared
invalid and for a further order declaring the 1st Petitioner the validly elected
President of Ghana.

According to the petitioners, there were a number of constitutional and

statutory violations, malpractices and irregularities in the conduct of the elections
which affected the outcome.

The alleged violations were categorized under these heads:

1. Over voting.
2. Voting without biometric verification.
3. Absence of signatures of Presiding Officers.
4. Duplicate serial numbers on Pink Sheets.
5. Widespread instances of polling stations where different results were
strangely recorded on different pink sheets bearing the same polling station
codes.
6. Instances where voting took place in certain locations which could not be
identified as part of the official list of 26,002 polling stations created by the
Electoral Commission.
On the 2nd of April 2013, these issues were set down for determination;

568
 (1) Whether or not there were violations, omissions,
malpractices and irregularities in the conduct of the
presidential elections held on the 7th and 8th of December,
2012.
(2) Whether or not the said violations, omissions,
malpractices and irregularities, if any, affected the results
of the elections.

Black‘s Law Dictionary the 8th edition, defines the term irregularity as an act or
practice that varies from the normal conduct of an action. In the Canadian
Supreme Court case of Ted Opitz v Borys Wrzesnewskyj 2012 SCC 55, a contested
election application, it was stated, ‘the term ‘irregularities’ should be interpreted
to mean failures to comply with the requirements of the Act, unless the deficiency
is merely technical or trivial. For ‘’irregularities’’ to have ‘’affected the result of
the election’’, they must be of a type that could affect the result of the election
and impact a sufficient number of votes to have done so. Votes cast by persons
not entitled to vote are irregularities that can affect the result of the election,
because they are votes that should not have been cast. If the number of such
votes equals or exceeds the winner’s plurality, then the result of the election is
affected and the election should be annulled.”

A malpractice, on the other hand, connotes a wrong or illegal practice per the
Oxford Advanced Learner’s Dictionary.

According to Black’s Law Dictionary, a violation is an infraction or breach of the

law; the act of breaking or dishonouring the law; the contravention of a right or
duty.

Before proceeding to consider the issues, I must commend Counsel for the
industry, the tremendous amount of documentary evidence placed before us; the
professional manner they were dealt with and the high standard of advocacy
evidenced by the extensive oral and written submissions.

569
I am acutely aware of the national importance of this petition and the far reaching
consequences this decision could have for this country.

Government, in a democratic system of governance, derives its life from the

people and that sacred nexus is made manifest in the electoral system. Among
the fundamental precepts in a democracy is the ability to hold periodic free and
fair elections together with an effective judicial oversight, bearing in view
however, that, as a basic principle, it should not be for the court to determine
who occupies the highest office of the land, the presidency; it the preserve of the
citizens,

Elections therefore offer the citizenry the opportunity to express their satisfaction
or otherwise with an incumbent leader or a political party, it is no wonder that
this challenge, arising out of the exercise of those rights, has caught the
imagination of all Ghanaians.

THE BURDEN

The petitioners must lead evidence on the balance of the probabilities. In other
words, they bear the burden of producing sufficient evidence from which a
reasonable mind could conclude that the irregularities and violations did occur. It
is only then that they could be said to have adduced evidence to the requisite
degree, or that they had discharged the evidential burden borne by them.
Sections 10, 11, 12 and 13 of the Evidence Act 1975, NRCD 323.

In Opitz v. Wrzesrewskys, supra, the Supreme Court held that an applicant who
seeks to annul an election bears the legal burden of proof throughout.

In Buhari V Obasanjo 2005 CLR 7K, a Nigerian case, the Supreme Court stated:
“The burden is on petitioners to prove that non-compliance has not only taken
place but also has substantially affected the results……..There must be clear
evidence of non-compliance , then that the non-compliance has substantially
affected the election.”

The Nigerian Supreme Court further said:

570
“He who asserts must prove such fact by adducing credible evidence. If the party
fails to do so, its case will fail. On the other hand, if the party succeeds in
adducing evidence to prove the pleaded fact it is said to have discharged the
burden of proof that rests on it. The burden is then said to have shifted to the
party’s adversary to prove that the fact established by the evidence could not on
the preponderance of evidence result in the court giving judgment in favour of
the party.’’

Those principles were affirmed in these cases:

1. Abubakar v. Yar’ Adua 2009 All FWLR (pt-451 1 SC.

2. Col. Dr. Kizza Besigye v. Museveni Yoweri Kagutai & Electoral Commission,
Election Petition N0. 1 of 200 It must be stated that these authorities are
of persuasive effect only.

Generally, it is presumed that election results are valid; therefore the parties
contesting the election have the burden of showing an irregularity or illegality
sufficient to change or place in doubt the result of the election. Supreme Court of
Georgia in Banker v. Cole 278 G.A 532

In Macraine v. Mullis 276 G.A 416, another decision of the Supreme Court of
Georgia, it was held that in order to set aside an election “the Court required
evidence to show that a sufficient number of persons voted illegally, or, were
illegally recorded in the contest being challenged to change or cast doubt on the
election.

Having regard to the fact that an election petition is essentially a civil matter, the
commencement of which is by the filing of a petition, the normal civil rules of
procedure, with the necessary legislative modifications, do apply. The system of
pleadings, therefore, forms an integral part of any civil litigation.

Pleadings are written statements of the parties in the action. They are served by
each party on the other, setting out the material facts on which each party relies.

571
Pleadings therefore do not only operate to define and delimit with clarity and
precision the real issues in controversy between the parties upon which they can
prepare and present their respective cases; and, upon which the court will be
called to adjudicate between them, but serve the purpose of informing each party
what is the case of the opposite party which he will have to prepare to meet
before and at the trial. In Esso Petroleum Co. Ltd. V. Southport Corporation,
(1956) A. C. 218 at 238, Lord Normand said “The function of pleadings is to give
fair notice of the case which has to be met so that the opposing party may direct
his evidence to the issue disclosed by them”

In Hammond v Odoi V.C.R.A.C. Crabbe JSC pronounced on the function of

pleading thus:

‘‘Pleadings are the nucleus around which the case- the whole case- resolves.
Their very nature and character thus demonstrate their importance in actions, as
for the benefit of the court as well as for the parties. A trial judge can only
consider the evidence of the parties in the light of their pleadings. The pleadings
form the basis of parties and place fetters on the evidence that they would lead.
Amendment is the course to free them from such fetters. The pleadings thus
manifest the true and substantive merits of the case. And the reply is very much a
part of the pleadings.’’

Thus, in situations where there are deletions and reclassifications of the facts in
dispute, in the course of the hearing, without the leave of the Court to amend;
the party could be said to have breached some cardinal rule of pleadings.

I now proceed to consider the grounds raised.

OVER-VOTING

In the amended petition filed on 8-2-13, paragraph 20 Ground 2(a); the petitioner
stated thus:

The results declared and recorded by the 2nd Respondent contained widespread
instances of over-voting in flagrant breach of the fundamental constitutional
principles of adult suffrage, to wit one man one vote.

572
On the Table provided under Ground 3, the figure of 128, 262, was set down as
the number of ballots affected and therefore to be annulled.

In Paragraph 37 of the affidavit of Dr. Bawumia filed pursuant to the directions of

the Court, appear the following:

“That while over-voting occurred in 2,065 polling stations representing 85%, over-
voting took place along with NBV, DS, NS, and DP. It is only in 320 polling stations
that the sole irregularity was over-voting.”

In Paragraph 44 of the same affidavit however, 130,136 votes were said to have
been vitiated by the over-voting phenomenon.

The KPMG Report, however, put the total of pink sheets counted in that category
at 318.

Clearly in circumstances that the total number of polling stations under the
category had been reduced by at least 2 by virtue of the KPMG Report; neither
the 128,262 nor the 130,136 could have remained unchanged.

In Court Dr. Bawumia testified that there had been a number of deletions. He
tendered various lists of deleted polling stations. Under Exhibit C-C1-C11, he
listed 44 polling stations under this category as having been deleted.

These deletions would certainly have affected the number of votes to be

annulled. Subsequent thereto another list of 704 polling stations was tendered as
Exhibit D.

Included in that list were 48 more polling stations under the over-voting category.

Clearly the number of polling stations to be affected, and more importantly, the
numbers of votes to be affected would see a reduction. One has to bear in mind
that numbers are of the essence since they must be used to measure the effect of
the irregularity, if any. In this instance however, one cannot determine with
precision the number of votes in issue.

573
It bears stating that whereas the 2nd respondent denied that there was over-
voting; the 3rd Respondent did not only deny but went further to assert that there
were patent, clerical and sometimes arithmetical errors in the recording which
had no material effect on the actual votes publicly cast, sorted counted and
recorded (Paragraph 15(iii) of the affidavit of Johnson Asiedu filed on 15th April
2013).

WHAT IS OVER-VOTING?

The petitioners gave 2 definitions:

1. Where the total votes in the ballot box as recorded on the face of the pink
sheets exceeds the voters’ register at the polling station as recorded on the
pink sheet.

2. Where the total votes in the ballot box as recorded on the pink sheets
exceeds the total ballots issued to voters as recorded on C 1and 2.
3.
For the Respondents however, the phenomenon occurs where the ballot cast
exceeded the number of persons eligible to vote at the polling station or numbers
of persons on the polling station register.

Even though, in the main, both definitions placed emphasis on the Register and
ballot paper; the Petitioners limit themselves exclusively to what appears on the
face of the pink sheet, i.e. the Declaration Form,

Although it is not disputed that the pink sheet was the basic document for the
elections it cannot, however, be said to be conclusive. It is important to note that
an election is not an event, but a process and that the pink sheet derived its
source from the Biometric Voters Register. It should therefore be the reference
point for a discussion of any issue under this category.

I am fortified in this view by the fact that all the political parties were
given copies of the voters register which the various polling agents of the major

574
political parties carried t to the polling stations on the days the elections were
held. These pieces of evidence were not challenged.

Indeed it is common knowledge that the polling agents who were at the polling
stations checked the names of persons who were verified and issued with the
ballots. Having regard to their role as watchdogs to check impersonation, multiple
voting and certification of the results (they had the right to protest by refusing to
sign the pink sheet) as provided for under C. I. 75 Regulation 19 (3) coupled with
the voting procedures, publicly sorting and counting etc; it would not be safe to
rely solely on the entries on the face of the pink to establish the incidence of over-
voting. Should any dispute arise as to whether persons who cast the ballot did
exceed the number on the voters register, disregarding the register, the genesis
of the pink itself will result in an error.

Indeed there was ample evidence that several errors were made by the presiding
officers in making the entries. Many of the entries were made in error.

In some cases, columns were wrongly filled, others were left blank; while yet in
others, the figures and words hardly matched. It was evident that some of the
errors could simply be corrected by entering the figures in the right columns.
Others were sheer were errors in the arithmetic.

Dr. Bawumia left the Court in no doubt that the petitioners were relying solely on
the pink sheet to establish cases of over-voting, for, he averred that there were
neither protests nor complaints lodged, in terms of the complaints procedures
laid out in the governing statute at the polling stations.

In the proceedings of 7th May 2013, to the question by learned counsel for the 3rd
Respondent

QUESTION: Was there any evidence of misconduct provided to you by any of the
polling agents at the polling stations?

The 2nd Respondent delivered of himself thus:

575
ANSWER: The only evidence we have brought to Court is the over-voting on the
face of the pink sheet.

He significantly admitted that they had no record of any person voting or

attempting to vote twice.

Having regard to the fact that credible evidence was led to show that statistics of
ballots issued by the 2nd Respondent to each Region, Constituency and Polling
Station were provided to all the political parties whose agents were at the polling
station and ticked the names of those verified (in these elections) I am of the view
that over-reliance on the pink sheet in the face of errors detected clearly led to a
dead end , for one cannot use wrong assumptions or data to arrive at the right
conclusions. Certainly such multiple inaccuracies cannot be the basis for a finding
that there was over-voting. Owing to the mistakes, the pink was manifestly
unreliable as a basis for establishing the phenomenon of over voting.

The petition and the affidavit of Dr Bawumia carried 2 different sets of numbers.
Deletions were made in the course of the hearing; the KPMG Report had a
different figure.

Again, in Court Dr. Bawumia admitted that some errors were made in the
computation. All these factors would have an effect on the numbers which, as
already mentioned, are vital.

None of the polling agents made a report of any irregularity; no evidence was led
on ballot box stuffing. And more importantly the ballots were cast and their
polling agents attested to the results.

While the presiding officers obviously did make some mistakes and clerical
errors, no mischief or advantage can be attributed thereto. Substantially the
voting, counting and tallying of votes were carried to a high degree of accuracy.

Which polling stations were affected?

How many results have to be annulled?

576
These are questions that the petitioners failed to answer under this category. I
would therefore decline the invitation to annul any votes under this category.

ABSENCE OF SIGNATURES

In paragraph 20 Ground 1(f) of the petition, the petitioners averred that there
were widespread instances of the absence of the signatures of presiding officers
or their assistants on the Declaration form.

The figure of 117, 670 were put down as the number of votes to be annulled as a
result of this irregularity.

In the affidavit of Dr. Bawumia filed in pursuance of the directions of the Court,
he averred in paragraph 39 that it was only in 310 polling stations that the sole
irregularity was the absence of the requisite signatures. In paragraph 76 he
testified that if this were the only irregularity, the 1st petitioner would have
obtained 49.03% of the valid votes whereas the 1st respondent would have
obtained 49%.

Essentially the respondents did not deny that in some cases the Presiding Officers
failed to sign the pink sheets. Indeed the 2nd respondent tendered Exhibit SA4, a
National Summary by Region Results of sheets not signed by the Presiding
Officers. According to the said Exhibit, 905 of the pink sheets were indeed not
signed by the Presiding Officers. Of the2009 of the pink sheets the petitioners
claimed were not signed by the presiding officers, 1, 989 were signed by the
agents of the candidates.

Having admitted that there were at least, 905 polling stations in which presiding
officers failed to append their signatures, the petitioners were relieved of the
duty to call further evidence on the issue.

Article 49 of the Constitution 1992 provides:

1. At any public election or referendum, voting shall be by secret ballot.

2. Immediately after the close of the poll, the presiding officer shall, in the
presence of such of the candidates or their representatives and their polling
agents as are present, proceed to count, at the polling station, the ballot

577
 papers of that station and record the votes cast in favour of each candidate
or question.
3. The presiding officer, the candidates or their representatives and, in the
case of a referendum, the parties contesting or their agents and the polling
agents if any, shall then sign a declaration stating
(a) the polling station; and
(b) the number of votes cast in favour of each candidate or question;
and the presiding officer shall, there and then, announce the results of the
voting at the polling station before communicating them to the returning
officer.

Article 49 is couched in mandatory terms. Undoubtedly it is an entrenched

provision, which can properly be amended in accordance with the procedure set
out under Article 290 of the Constitution. Article 49 sets out in detail the duties of
the presiding officers and the polling agents immediately after the close of the
poll in any public election or referenda. Under Article 45(c)of the Constitution, the
Electoral Commission is vested with the power to conduct and supervise all public
elections and referenda.

Article 51 stipulates that the 2nd respondent shall make regulations for the
effective performance of its functions; particularly for the conduct of public
elections among others.

It is evident that even though Article 51 vests the power in the E.C to make
regulations for the conduct of the elections; it is only under Article 49 that the
steps to be followed by the presiding officers and the polling agents, after the
close of the polls, are set out in detail.

Since the provision is couched in mandatory terms, clearly where the signature of
the presiding officer fails to appear, it does not admit of any argument, on a literal
interpretation, of the said article, that there has been a breach and therefore the
results ought to be nullified.

However, it has been held in a long line of decisions that a strict, narrow,
technical and legalistic approach to interpretation of the Constitution, the
embodiment of our hopes and aspirations, must be avoided In Danso-

578
Acheampong v. AG and Abodakpi 2009 SCGLR 353, at 358 this Court, speaking
through Prof. Date-Bah, stated:

“These days, a literal approach to statutory and constitutional

interpretation is not recommended. Whilst a literal interpretation of a
particular provision may, in its context, be the right one, a literal approach
is always a flawed one, since even common sense suggests that a plain
meaning interpretation of an enactment needs to be checked against the
purpose of the enactment, if such can be ascertained. A literal approach is
one that ignores the purpose of the provision and relies exclusively on the
alleged plain meanings of the enacted in question’’.

In Tuffour V Attorney Gen. (1980) GLR 63 it was held that a national constitution
must be given a benevolent broad, liberal and purposive construction so as to
promote the apparent policy of its framers. See Asare V Attorney General 2003-
2004 SCGLR 823 and Apaloo V Electoral Commission of Ghana 2001- 2002
SCGLR 1.

The right to vote is enshrined in the Constitution in Article 42 thereof. Universal

Adult suffrage is, without a doubt, one of the pillars of our democracy.
Significantly, article 42 is equally an entrenched provision. Article 290 (1) e

Was it the intention of the framers of the Constitution that persons who have
exercised their rights under art. 42 by going through the electoral procedures,
registered as voters, had their names on the register, participated in the election
by casting their votes which have been publicly counted, recorded and
announced, should have such votes not ‘counted’ on account of the sins of one
public officer?

We have freely chosen the democratic form of governance in which sovereign

power resides in the people as a whole. Under that system each citizen must be
afforded a genuine opportunity, through the conduct of free and fair elections, to
determine who his leaders or representatives should be.

An election being a process as opposed to it being an event, where all the stages
have been gone through and therefore the elections could be said to have been
579
substantially held in accordance with the regulations, to nullify the results on this
ground per se, would amount to putting in the power of some unscrupulous
presiding officer in some polling station to nullify the solemn act of the whole
constituency by his single act of omission.

The right to vote is at the heart of our democracy; Tehn-Addy V A G and

Ors, 1997-98 1GLR 47 and Ahumah-Ocansey V Electoral Commission and
Ors 2010 SCGLR575.

One would ask what the purpose is for Article 49(3) in the Constitution.

Article 51 of the Constitution vests the power in the Electoral Commission to

enact regulations for the conduct of the elections. Pursuant to the said power, C.I.
75 came into force. Regulation 19 thereof defines the role of a polling agent in
these terms:

“an appointment under sub-regulations (1) and (2) for the purpose of
detecting impersonation and multiple voting and certifying that the poll was
conducted in accordance with the laws and regulations governing the
conduct of elections”

That the polling agent plays a vital role in the process is not in doubt. In this
regard the certification that the poll was conducted in accordance with the
laid down procedures is crucial for the integrity of the process. As a
representative of a candidate or a party, by appending his signature to the
Declaration; he serves notice to his principal and the generality of the
citizenry that the presiding officer has complied with the rules; there has
been the casting of the ballot, counting, recording and the declaration of
the results. Since the Constitution requires that both the Presiding Officers
and polling agents sign, looking at their duties;and obviously the reason for
signatures in terms of the credibility of the process i. e. the polling agent
vis a vis the presiding officer, in the event of the presiding officer’s failure
to sign , a purposive interpretation would not defeat the objectives of
Article 49(3) in that even though the Presiding Officer had failed to sign, the
polling agent’s signature, to my mind, is a bold declaration for the integrity
580
of the whole electoral process. Where he therefore certifies the results,
which is essentially about the ballot; the absence of the presiding officer’s
signature should not result in an annulment. Of the two, the polling agent
was obliged to protest should he take the view that there was a violation of
some statute, he could refuse to sign and give reasons; however the
presiding officer had no such option.

Furthermore there was no evidence that the persons who voted in the
election ought not to have voted, neither is there any evidence that some
people voted more than once. Indeed there was no evidence that any of
the voters or the respondents engaged in any fraudulent acts. In other
words, there was a real election by ballot.
Undoubtedly the competing provisions guaranteeing the right to vote
under Article 42 and Article 49(3) which imposes a duty on the presiding
officer to sign the Declaration Form should be resolved by purposively
interpreting them so as to ensure that those who have exercised their right
to vote shall have their votes counted.

In my view, visiting the sins of some public official on innocent citizens who
have expressed their choice freely would run counter to the principle of
universal adult suffrage, one of the pillars of our democracy, and
perpetuate an injustice.

The omissions of a presiding officer should not disenfranchise the voter.

I would therefore decline the invitation to invalidate the votes cast on

account of the absence of the signature of the presiding officers.

A general comment
The notion that polling agents are ornamental pieces adorning the polling
stations must be discarded. Their roles are clearly defined by the
Constitution and other statutes governing the elections. A vigilant polling
agent would detect some of the wrongful acts at the polling station. He
581
could then set in motion the complaint mechanism in the governing
statute, designed at addressing the complaints, at the polling stations or
collation centers’ with minimum delay. This costly exercise of combing
through a mountain of election materials, with a view of unearthing
irregularities, well after the declaration of the results, would be greatly
reduced. Sadly, many a time, the crucial duties of polling agents are left in
the hands of persons who hardly appreciated the reasons for their
presence at such fora.The need to recruit a group of committed and
dedicated persons with a certain level of education cannot be
overemphasized.

DUPLICATE SERIAL NUMBERS

It is the petitioners’ case that “there were widespread instances where

there were same serial numbers on pink sheets with different poll results
when the proper and due procedure established by 2nd Respondent
required that each polling station have a unique serial number in order to
secure the integrity of the polls and the will of the lawfully registered
voters.

Under this head the petitioners request that 3,508,491 votes be

invalidated. In answer the respondents asserted that the serial numbers
had nothing to do with the Declaration Form; that its unique features were
the name of the polling station and its unique code.

I must say that the pieces of evidence offered by both Mr.Johnson Asiedu
Nketiah and Dr. Afari Gyan shredded into pieces the petitioners’ case under
this head. It became evident that Dr. Bawumia was not too familiar with the
processes and procedures leading to the conduct of the presidential
elections.

The exact nature of the malpractice under this head was not clear from his
testimony, how the serial numbers affected the recording of the results,
582
but more importantly how the alleged opportunity offered by the duplicate
series got exploited so as to result in any irregularity was never established.

It is trite learning that an election cannot be overturned on the basis of

mere speculation, for it is not about what could have happened; but what
did take place. I do not therefore feel able to grant the prayer of the
petitioners under this category.

VOTING WITHOUT BIOMETRIC VERIFICATION

As per paragraph 20 Grounds (1) and (d) of the amended Petition, the
petitioners alleged:
(a) That 2nd respondent permitted voting to take place in many
polling stations across the country without prior biometric
verification by the presiding officers of 2nd respondent or their
assistants, contrary to Regulation 30(2) of C.I. 75.

According to the 2nd Petitioner as per paragraph 52 of his affidavit;

137,112of the votes should be annulled.

In his evidence before the Court, Dr. Bawumia in answer to a question as to

how the petitioners arrived at the conclusion that persons voted without
biometric verification

ANSWER: “My Lords, evidence is on the face of the pink sheet. Section C3
of the pink sheet asks the question how many voters voted with the use of
form 1 C were verified to vote by the use of form 1C and not by biometric
verification device that is filled in Sec C3, and so, my Lords, what we did
was to aggregate for each polling station where voting without biometric
verification took place. We aggregated all the numbers in Sec C3 and my
Lords if I may refer to my tables we have a total of 535, 723 people who
voted without biometric verification in the polling stations under
contention”

583
It is obvious that the petitioners simply went through the pink sheets and
totaled all the figures in Form C3. The issue is whether that sole exercise
discharges the burden placed on the petitioners, in terms of Sections 10
and 11 of the Evidence Act, 1973.

Dr. Afari Gyan in his testimony stated that the column C3 was not required
to be filled by the presiding officers.

According to him that column was created to take care of those voters who
had been registered during the biometric registration exercise that
preceded the voting, but whose biometric data had been lost.

He stated however that upon discussions with the political parties some of
them vehemently opposed the idea and insisted that the only means of
verification should be through the machines. It was therefore agreed that
the form 1. C. was not to be used. This, according to him, was at a time the
forms had already been printed and that since C3 column could not be
taken off, the presiding officers were asked to leave that column blank. He
tendered in evidence E. C. 5 the Form 1. C. and added that the said Form C1
was therefore not taken to the polling stations.

Regulation 30(1) of C.I. 75 provides:

(1) A presiding officer may, before delivering a ballot paper to a person who
is to vote at the election, require the person to produce
(a) a voter identification card or
(b) any other evidence determined by the Commission in order to
establish by fingerprint or facial recognition that the person is the
registered voter whose name and voter identification number and
particulars appear in the register.

584
(2) The voter shall go through a biometric verification process.
The procedure to be followed under Regulation 30 presupposes that there
must be a ballot paper; a voter’s identification card and biometric
verification equipment. The latter has been defined in Regulation 47 as a
device provided at the polling station for the purpose of establishing by
fingerprint the identity of the voter.

Therefore where a dispute arises as to whether a voter had been verified,

the best evidence should be the verification machine. Even if the pink sheet
were the primary document, it is not conclusive; for it is my respectful view
that prints out from the verification device would have put to rest any
arguments as to whether those persons went through the verification
process or not.

It is to be noted that when the petitioners made the allegation which was
denied by the 2nd respondent, it was not enough for the 2nd petitioner to
have mounted the witness the box and repeated the averments since those
facts are capable of proof by some other means i.e. producing the prints
out of the machine as a form of proof. Majolagbe V. Larbi(1959)1 GLR190.

It could be argued that since the evidence led was documentary, parole
evidence was inadmissible to vary or contradict same.

That there are exceptions to the rule is beyond doubt. Dr. Afari Gyan
tendered the form 1.C. With the introduction of the said document the
question in C3 became meaningful. It became obvious, that one could not
answer the question in that column without any reference to E. C. 5 which
were not taken to the polling stations, in other words, E, C. 5 was
consistent with the contents in C.3, Again the 2nd was emphatic that no
person voted without being verified and, that, while admitting that there
challenges with the equipment, voting in those areas were adjourned to
the next day in those areas.

It is a notorious fact that the poll was adjourned in some areas and
therefore there were two days of voting. If persons were allowed to vote

585
without verification would there have been any need for the adjournment?
I think not. In the absence of any credible evidence to the contrary (some
polling agent or voter testifying) I would prefer the pieces of evidence of
the respondent’s on this issue to the bare assertions of the petitioners
based on the face of the pink sheets,It became obvious that the attack
mounted under that category was premised on a misconception and
therefore impossible to stand.

I would accordingly decline the petitioner’s invitation to annul the votes

under that category.

UNKNOWN POLLING STATIONS

In paragraph 20 Ground 2(a) the petitioners complained that “there were

28 locations where elections took place which were not part of the twenty-
six thousand and two (26002) polling stations created by the 2nd
respondent.”

In Court however, on the issue, Dr. Bawumia testified thus “we could not
match the names and the polling stations. Again as with the duplicate
numbers category, this category is insignificant;’

The petitioners had a duty to establish that those polling stations did not
exist.

Exhibit EC 3 showed that the petitioners knew about the existence of those
polling stations and had indeed appointed agents to thereto.

If they did not know of the existence of those polling stations, they
obviously could not have sent their agents there.

I must say that no evidence was led on when those polling stations were
created.

I would in the circumstances, find that the petitioners have failed to lead
evidence sufficient for a finding in their favour on this ground.

586
 I accordingly decline to annul the votes stated there under.

SAME POLLING STATION CODES ON DIFFERENT PINK SHEETS

Under this category even though the petitioners took the view that votes
under that category were insignificant, I would only find the explanation by
the 2nd respondent credible; that some were polling stations were so large
as to be divided into sections A and B; while the others, constituted polling
stations where special voting took place, I would so find and dismiss the
petitioners’ case under this ground as well.

For the foregoing reasons I would dismiss the petition in its entirety.I
must say that on paper, we seem to have a transparent electoral system
which has evolved over the years. The political parties have been active
participants. Even though the IPAC is not backed by law, it has played a
pivotal role at every stage of the process. The registration of voters,
printing of ballot papers, training of polling agents, the sorting and counting
done publicly, the transparent ballot boxes and the photo identification
cards raise the level of transparency to a very high degree. It became
evident however that the myriad of errors and blunders were committed
by the election officials. Such errors did no credit to the system. It is
therefore recommended the caliber of persons recruited for the exercise.

(SGD) V. AKOTO-BAMFO(MRS)

JUSTICE OF THE SUPREME COURT

COUNSEL

PHILIP ADDISON (WITH STEPHEN DAPAAH, MS. GLORIA AKUFFO,

FRANK DAVIS, ALEX QUAYNOR, AKOTO AMPAW, NANA ASANTE
BEDIATUO, KWAME BOAFO AKUFFO, KWAKU ASIRIFI, GODFRED
YEBOAH DAME, EGBERT FAIBILLE,JNR. AND PROF. KEN.
ATTAFUAH) FOR THE PETITIONERS.

587
TONY LITHUR (WITH HIM DR. ABDUL AZIZ BAASIT BAMBA) FOR
THE 1ST RESPONDENT.

JAMES QUASHIE IDUN (WITH HIM ANTHONY DABI, STANLEY

AMARTEIFIO, STEPHANY AMARTEIFIO AND FREDA BRUCE-
APPIAH ) FOR THE 2ND RESPONDENT.

TSATSU TSIKATA (WITH HIM SAMUEL CODJOE) FOR THE 3RD

RESPONDENT.

588