Respondents oppose petitioners' request for collation forms

June 26, 2013 (Page 16)

(From left) Tony Lithur, Tsatsu Tsikata, Counsel for first and third respondent respectively 











Respondents in the presidential election petition have opposed the petitioners’ request which is praying the Supreme Court to direct the Electoral Commission (EC) to produce collation forms for 13 constituencies.
President John Dramani Mahama, the Electoral Commission (EC) and the National Democratic Congress (NDC), in separate applications, are pleading with the Supreme Court to dismiss the petitioners’ application on the premise that it was an abuse of the court’s process as well as being too late in the day.
The petitioners, who are the presidential candidate of the New Patriotic Party (NPP), Nana Addo Dankwa Akufo-Addo, his running mate, Dr Mahamadu Bawumia, and the Chairman of the NPP, Mr Jake Obetsebi-Lamptey, are praying the court to order the EC “to produce for inspection and photocopying” the Presidential Election  Collation Results Forms for 13 constituencies across the country.
According to the petitioners, the grant of their request would enable lead counsel for the petitioners, Mr Philip Addison, to do an effective cross- examination of Dr Afari-Gyan, “to demonstrate that the petitioners brought the instant action in good faith.”
The constituencies are Lezokuku, Lower Manya Krobo, Tamale South, Techiman North, Yilo Krobo, Akwapim North, Berekum West, Kintampo South, Upper West Akim, Mpohor, Yendi, Ketu North and Oforikrom.
However, the respondents in their affidavits in opposition filed on June 24 and June 25, 2013, are of the view that the request of the petitioners had not been pleaded in their original pleadings and must, therefore, be dismissed.

Deposition on behalf of President Mahama
An affidavit in opposition deposed to by the Campaign Co-ordinator of President Mahama on behalf of the President said the application and orders sought, even if granted, did not support the case of the petitioners.
According to the affidavit, the present application, if granted, would “open the floodgates for petitioners to demand all manner of documents from second respondent to the prejudice of first respondent and, thereby cause delay.” (The President and EC are the first and second respondents).
The affidavit said the petitioners ought to have known prior to the commencement of the trial the documents they would require to prove their case.
“Petitioners are parties to litigation, and are therefore bound by the rules governing such litigation. Citizenship does not constitute a lawful basis for circumventing the rules,” it stated.
The petitioners had claimed in their application that “all citizens of Ghana have a constitutional right, by virtue of Article 21 (1) (f) of the Constitution to access information on such public documents as the Presidential Election – Collation Results Forms in the custody of the 2nd respondent, after the close of elections and declaration of results.”
According to the affidavit, a similar application was made by the petitioners orally during cross examination of the Chairman of the EC, Dr Kwadwo Afari-Gyan, “and opposed by all respondents. Respondents objections were upheld in terms that cover the present application.”
“The petitioners knew and ought to have known prior to the commencement of trial the documents they would require to prove their case. The particulars that petitioners requested for in support of their allegation of “padding” had been provided by 2nd respondent upon an application by the petitioners for further and better particulars. There was no reason not to have made the present application at that time,” it pointed out.

The EC’s affidavit in opposition
The affidavit in opposition deposed on behalf of the EC by its Deputy Chairman in charge of Finance and Administration, Mr Amadu Sulley, said the discovery requested by the petitioners “is belated at this point in the trial, is not necessary, oppressive, an abuse of the process of this Honourable Court and that it is not made in good faith.”
It explained that at each constituency centre on election day, the returning officer  “in the presence of candidates or their representatives, fills the presidential elections – results collation forms (Form EL. 23B) on the basis of the declaration of results forms (the second part of pink sheets – EL 22B) from all the polling stations in the constituency and collates or adds up the said results and completes the presidential election – constituency summary results sheet (Form E. 24B), the declaration of results which he/she signs and request candidates or their representatives to sign and gives them copies before announcing publicly the results of the presidential election in the constituency.”
According to the EC, a copy of the declared results was posted at the constituency centre and the said results were sent to the Regional Office and faxed from there to the “Strong Room” at the commission’s headquarters, “where representatives of the candidates are present and sign the results before they are sent to the Chairman of the Commission. After the Chairman has signed the said results, copies are given to the representatives.”
It, therefore, prayed the court to dismiss the petitioners demand on the grounds that it had not been made in good faith.

Fishing Expedition
In his affidavit, the General Secretary of the NDC, Mr Johnson Asiedu Nketia, argued that the application was without merit because according to him, “nowhere in the pleadings before this court filed by the petitioners is there any allegation in respect of the collation in any of those constituencies, which could make relevant evidence from the collation sheets being sought in the application herein.”
That, to the NDC scribe, could, therefore, not serve the basis for the collation forms to be brought into evidence in the court’s proceedings.
“The petitioners have sought to rely on polling station results in this case and have never alleged that collation of these polling station results were wrongly done except in their reference to Dome-Kwabenya where they themselves allege the correct result was ultimately entered on the collation form after protests.
“There is no suggestion of protests in respect of the collation of results in the constituencies they now seek information from. Nor is there any suggestion that the results collated in these constituencies, as recorded on the results forms and noted by the representatives of 1st petitioner at the collation centre were not what were included in the results declared,” the affidavit pointed out.
It further argued that the petitioners were going completely outside the case as put forward in their pleadings and accordingly accused them of, “undertaking a fishing expedition in the hope of possibly getting material with which they could try and reconstruct their case, which has totally crumbled.”
According to the affidavit, the grant of the application would adversely affect  the party’s case because it had since closed its case and was, therefore, precluded from leading evidence on any facts if the collation forms for the 13 constituencies were produced.