File affidavits in 5 days; Supreme Court orders EC
The Supreme Court Wednesday reaffirmed its order to the Electoral Commission (EC) to file its written affidavits within five days from the service of petitioners’ affidavits on it in the presidential election petition challenging President John Dramani Mahama’s legitimacy.
That was after the nine-member court, presided over by Mr Justice William Atuguba, had, in a unanimous decision, dismissed an application by the EC to vary its orders to allow it and the other respondents in the case to file their evidence in the form of written affidavits after the petitioners had closed their case in the trial.
According to the court, having regard to the case before it, the resort to the High Court (Civil Procedure) Rules, CI 47, was misconceived and described the application as lacking merit.
It said in spite of express rules on presidential election petitions, the Rules of Court Committee had created special rules for that and, therefore, the court could not liberally resort to CI 47.
Petition and other laws
The court said the petition had to be decided expeditiously and that being so, all other laws must be modified in their application, even though articles 1(2) and 11(5) and (6) of the 1992 Constitution provided that all other laws must bow to the Constitution.
A presidential election petition, it further held, was part of its original jurisdiction, with special rules for its determination, and so resorting to CI 47 was untenable, pointing out that the procedure on burden of proof was warranted in law.
Mode of trial
On April 2, 2013, the court held that in order to ensure an expeditious determination of the case, the mode of trial would involve evidence in the form of sworn affidavits from potential witnesses in the case.
It, accordingly, directed the petitioners to file the affidavits of witnesses on or before April 7, 2013, while the respondents in the case were directed to file their written affidavits within five days from the service of petitioners’ affidavits on them.
EC's motion
However, the EC, in a motion on notice filed on its behalf by its solicitors, Lynes Quashie-Idun and Co, urged the court to vary its order directing the respondents to file their written affidavits within five days from the service of petitioners’ affidavits on them.
It prayed the court to allow it and the other respondents to file their evidence in the form of written affidavits after the petitioners had closed their case in the trial.
Moving the application at the court’s sitting yesterday, Mr Quashie-Idun said although it was understood that the court was sitting as a court of first instance, it could resort to CI 47 and that was the basis of the application.
He also made reference to the Evidence Act, particularly provisions relating to the burden of proof, and urged the court to consider those vis-a-vis the application.
Mr Quashie-Idun said since the court was functioning as a trial court, the petitioners had the burden of proof and of persuasion on the matter, adding that the petitioners should be ordered to open their case and present their evidence, whether oral or by affidavit, before the respondent was required to open its case.
He said the EC had not been served with any affidavits from the petitioners and that as one of the respondents it was not required to even produce any evidence, since it was the petitioners who would have to bring everything to the table.
What the EC was doing, he said, was not intended to delay or hinder the expeditious hearing of the case but, on the contrary, ensure a smooth and well-ordered trial in accordance with the established procedures of the court.
Petioners counsel's response
Lead counsel for the petitioners, Mr Phillip Addison, opposed the EC’s application on the grounds that it was seeking to review the court’s order and added that a similar application had earlier been refused by the court.
He said rules for the review of the court’s decision were clear and known and the applicant had not complied with them.
Mr Addison said the court had declared that the petition would be determined by affidavit evidence pursuant to the rules and that the resort to CI 47, which was a High Court rule, was wrong when there was in existence specific rules for determining the petition.
“A presidential election petition is not the same as any ordinary trial in the High Court for which rules have been made in CI 47,” counsel argued, and stated that the rules cited by the EC’s counsel related to procedures in the High Court, which had no bearing on election disputes.
He said if the application was allowed, it would mean the respondents would conduct their case at the back of the petitioners’, while the petitioners would not have the opportunity to traverse the respondents’ case.
Counsel argued that the application was not supported by any rule of law and practice in the courts of the land and it ought to be dismissed and the respondents ordered to comply with the court’s April 2, 2013 order.
NDC's counsel
Counsel for the National Democratic Congress (NDC), Mr Tsatsu Tsikata, stood up to respond to the application, but he was opposed by Mr Addison, who said he did not know in what capacity counsel was going to argue, since he had not filed any process in the application.
But Mr Tsikata said his arguments were in relation to points of law and that reference to CI 47 by counsel for the EC was appropriate because at the consideration of application for directions stage counsel for the petitioners had also made reference to the same rules to enable the court to assess how to conduct the trial.
“There is nothing strange by referring to CI 47 because Your Lordships have even, on a number of occasions, made reference to CI 47,” Mr Tsikata said.
He said provisions in the Constitution could not be overruled by any subsidiary legislation and, therefore, a review by the court was permissible.
According to counsel, although the respondents had not been served by any affidavits filed by the petitioners, they were aware of information in the public domain by virtue of a press release issued by the petitioners, which the court should take judicial notice of against the exigencies of the case.
Panel, Respondents, Petitioners
Other panel members of the court are Mr Justice Julius Ansah, Mrs Justice Sophia Adinyira, Ms Justice Rose Owusu, Mr Justice Jones Dotse, Mr Justice Anin Yeboah, Mr Justice P. Baffoe-Bonnie, Mr Justice N.S. Gbadegbe and Mrs Justice Vida Akoto-Bamfo
President Mahama and the NDC are the first and third respondents, respectively, in the petition, while the EC is the second respondent.
The petitioners, who are the presidential candidate of the New Patriotic Party (NPP) in the December 2012 presidential election, Nana Addo Dankwa Akufo-Addo; his running mate, Dr Mahamadu Bawumia, and the Chairman of the NPP, Mr Jake Obetsebi-Lamptey, are calling for the annulment of 4,670,504 votes, representing votes cast in 11,916 polling stations across the country, due to what they term “gross and widespread irregularities”.
But the respondents have denied the petitioners’ claims on the grounds that the election results were credible.
Issues for trial
The court fixed hearing of the substantive matter for April 16, 2013, after narrowing down two issues for trial, namely, whether or not there were statutory violations, omissions, irregularities and malpractices in the conduct of the presidential election held on December 7 and 8, 2012 and whether or not the said violations, omissions, irregularities and malpractices (if any) affected the outcome of the election.
Some of the irregularities, malpractices, omissions and violations complained of and due to be determined by the court are allegations of persons being allowed to vote without biometric verification, some presiding officers and/or their assistants not signing declaration forms (pink sheets), total number of votes cast exceeding the total number of registered voters, as well as total number of ballot papers issued.
Other irregularities to be considered by the court are whether or not the alleged statutory violations introduced 4,670,504 invalid votes cast in the December 2012 presidential election, whether or not ballots cast without biometric verification were taken into account by the EC in the declaration of results, among others.
Related development
In another development, the court had cause to comment on the failure of the Chairman of the EC to attend sittings of the court since the beginning of the case.
Mr Justice Dotse had asked Mr Quashie-Idun who the returning officer of the presidential election was.
Mr Quashie-Idun replied that it was the EC Chairman, Dr Kwadwo Afari-Gyan.
“And does it not concern him that he had never stepped in this court since the inception of this case?” Mr Justice Dotse further asked.
Before Mr Quashie-Idun could reply, another judge, Mr Justice Anin Yeboah, said the returning officer had not bothered to file to swear even a single affidavit in the matter.
Story: Stephen Sah