Application for discovery and inspection of documents
Practice and procedure – Supreme Court – Procedural rules – Matters not expressly provided for – Discovery and inspection of documents – Supreme Court to adopt as matter of procedure provisions in CI 47 in accordance with rule 5 of CI 16 – Supreme Court Rules, 1996 (CI 16), r 5 – High Court (Civil Procedure) Rules, 2004 (CI 47), Order 21 – Discovery of documents can only be made after close of pleadings under Order 21, r1(1) – Production of documents for inspection and photocopy can be made at any time not necessarily at close of pleadings under Order 21, r8(1) – CI 47, Order 21, rr1(1) and 8(1) – Guiding principle – Applicant petitioners given duplicate copies of documents being public documents in official custody of respondent Electoral Commission – Unnecessary under Order 21, r11(1) to apply to court for order for inspection of documents – Duplicate copies of documents admissible in evidence under NRCD 323, s 166 – Evidence Act, 1975 (NRCD 323), s 166 – CI 47, Order 21, r11(1) –
SUPREME COURT, ACCRA
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(Civil Motion No J8/44/2013)
Published Thursday January 30, 2014
IN RE PRESIDENTIAL ELECTION PETITION;
AKUFO-ADDO, BAWUMIA & OBETSEBI-LAMPTEY (No 3) v ELECTORAL COMMISSION
(MAHAMA & NATIONAL DEMOCRATIC CONGRESS INTERESTED PARTIES) (No 3)
BEFORE THEIR LORDSHIPS: ATUGUBA, ANSAH, SOPHIA ADINYIRA, R C OWUSU,
DOTSE, ANIN YEBOAH, BAFFOE-BONNIE, GBADEGBE, AND VIDA AKOTO-BAMFO JJSC
Ruling on February 7, 2013
The relevant facts of the case were as follows: On 7 and 8 December 2012, the second respondent, the Electoral Commission, the constitutional body established under article 43 of the 1992 Constitution conducted Parliamentary and Presidential Elections in the various constituencies across the length and breadth of the country.
At the end of the elections, the Electoral Commission, through its chairman, declared John Dramani Mahama, the Presidential Candidate on the ticket of the National Democratic Congress, a political party, as having been validly elected as President of the Republic of Ghana. Thereafter, on 11 December 2012, the Declaration of President-Elect Instrument, 2012 (CI 80), was published under the hand of Dr Kwadwo Afari-Gyan, the Chairman of the Electoral Commission.
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Upon the declaration of the results of the Presidential Election, the three petitioners: Nana Addo Dankwa Akufo-Addo, the Presidential Candidate of the New Patriotic Party (NPP); his running mate Vice Presidential Candidate, Dr Mahamadu Bawumia; and Mr Jake Obetsebi-Lamptey, the Chairman of the NPP, filed in the Supreme Court, a petition for a declaration that John Dramani Mahama was not validly elected President of the Republic of Ghana. They also prayed for a further order declaring Nana Akufo-Addo, President of the Republic of Ghana, among others.
After service of the petition on John Dramani Mahama and the Electoral Commission, the first and second respondents respectively, they duly filed their answers within the statutory period. Subsequently, the National Democratic Congress (NDC) was, upon application to the court, joined as a respondent to the petition.
There were a number of applications brought by the parties before the final determination of the petition by the Supreme Court. The petitioners in the instant application, namely: Nana Addo Dankwa Akufo-Addo, Dr Mahamadu Bawumia and Mr Jake Obetsebi-Lamptey (hereafter referred to as the applicants), sought an order directed at the second respondent Electoral Commission to produce for inspection and photocopying: (i) The Results Collation Forms for all the Collation Centres (Constituencies) for the Presidential Election; and (ii) The Declaration Forms pink sheets for all 26,002 polling stations.
In the affidavit in support of the application, the petitioners stated, inter alia, that: The Electoral Commission, the second respondent, was under statutory obligation to keep the record of the originals of the Results Collation Forms of the December 2012 Presidential Election for a minimum period of one year after any Presidential Election; and that by a letter dated January 21, 2013, the petitioners had requested the second respondent to indicate at what place, date and time within a day of receipt of the letter that counsel for petitioners could inspect and make photocopies of the Results Collation Forms for the Presidential Election from all 275 Collation Centres (Constituencies) and the minutes of all meetings of the second respondent between 2010 and 2012. The letter was delivered to counsel for the second respondent on the same day, January 21, 2013.
On these facts, the Supreme Court unanimously dismissed the application for the following reasons: First, the Supreme Court Rules, 1996 (CI 16), had no provisions regarding discovery and inspection of documents. In accordance with rule 5 of CI 16, the Supreme Court would, as a matter of practice, adopt the provisions in the High Court (Civil Procedure) Rules, 2004 (CI 47), Order 21.
In contrast with applications for discovery of documents under rule 1(1) of Order 21, which could only be made after close of pleadings, applications to produce documents for inspection and photocopy of documents referred to in pleadings could be made at any time and not necessarily at the close of pleadings under rule 8(1) of Order 21 of CI 47.
Second, the guiding principle for production of documents for inspection (as provided in Order 21, r 11(1) of the High Court (Civil Procedure) Rule, 2004 (CI 47)), was whether the order was necessary either to dispose fairly of the cause or matter or to save costs.
In the instant case, the Results Collation Forms and the original Declaration Forms (pink sheets) were public records in the official custody of the second respondent Electoral Commission.
The petitioners as well as the first and third respondents, like all other political parties and independent candidates that had contested the December 2012 Presidential Elections, had been given duplicate copies of the said documents through their representatives at the polling and collation centres and the so-called strong room of the Electoral Commission in accordance with the provisions of Public Elections Regulations, 2012 (CI 75).
The Supreme Court, in throwing further light regarding the second reason, said per Sophia Adinyira JSC: “It is our thinking that where a party is already in possession of a copy of a document mentioned in another party’s pleadings, it is unnecessary to apply or for the court to make an order for inspection and making copies of the document in question.
By virtue of the Evidence Act, 1975 (NRCD 323), s 166, the duplicate copies of these documents are admissible to the same extent as the originals in the custody of the second respondent Electoral Commission.”
Third, the Supreme Court would affirm the right of all persons to information, as expressed in article 21(1)(f) of the 1992 Constitution which stated that “all persons shall have the right to information, subject to such qualifications and laws as are necessary in a democratic society.”
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That right to information implied a right to access public documents. However, it seemed to the court that the reliance on article 21(1)(f) in support of this application was rather lame.
For, it was undisputed that the petitioners were in possession of duplicates of the said documents handed over to them and the other Presidential Candidates by the officers and or agents of the second respondent Electoral Commission, which was the official custodian of the originals after the collation of the election results at polling and collation centres and the strong room of the Electoral Commission.
In conclusion, the Supreme Court (per Sophia Adinyira JSC) also said: “In the circumstances, we would hold that the petitioners are sufficiently and well-informed about the election results which had enabled them to mount this petition on grounds of malpractices in 4,709 polling stations based on the contents of these duplicate documents in their possession.
The affidavit in support of the application does not disclose any need for the inspection and making photocopies of the originals of the documents. A refusal to grant this application would therefore not infringe their right to information under the said article 21(1)(f).”
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