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Supreme Court Election Petition: How Many Voted Abroad? Petitioners Ask EC   
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The 2012 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 Otanka Obetsebi-Lamptey, have filed an application at the Supreme Court seeking an order directed at the Electoral Commission (EC) to answer interrogatories relating to Ghanaians who voted during the December 2012 elections in foreign countries.

Making his submission yesterday before the Supreme Court, lead counsel for the petitioners, Mr Phillip Addison said the information required related to their date of registration and data on Foreign Service officials and students abroad on government scholarship.

The others are every Ghanaian living abroad by virtue of working with an international organisation and service personnel returning from foreign peacekeeping missions.

He said the application was based on portions of the answer given by the EC to the petition that about 200,000 votes from those categories of voters were included in the final results of the election because they were registered outside the country.

According to counsel, the number was far less than that declared by the EC and more so because the total number of registered voters was an issue in the matter.

Mr Addison said the application was brought under the inherent jurisdiction of the court that such an application could be brought after the close of pleadings.

Lead counsel for the EC, Mr James Quashie-Idun, opposed the application and described it as premature, since an earlier application for further and better particulars had not been determined by the court.

After that counsel for the National Democratic Congress (NDC), Mr Tsatsu tsikata, prayed the court to be allowed to make his submission considering the nature of the application.

He said that the interrogatories would affect on the matter and although the application was served on only the EC, it had the tendency to affect all the parties in the matter.

At that stage, Mr Addison objected and argued that since Mr Tsikata had not filed any process he did not see why the rules of the court should allow him to make oral submissions to take everybody by surprise.

Following the back and forth arguments, the president of the court, Mr Justice William Atuguba, announced that the court, by a decision of 6-3, ruled that Mr Tsikata could be heard on the application for interrogatories.

Earlier, lawyers for the petitioners and two of the respondents had made submissions in respect of an application for better and further particulars filed by the EC.

Counsel for the NDC, the third respondent, was not allowed to make any submission in the application for further and better particulars because the court by an 8-1 decision ruled that Mr Tsatsu Tsikata could not do so having failed to file any processes to that effect.

President Mahama is the first respondent in the case, while the EC, the body that organised the elections and subsequently declared the results, is the second respondent.

Lead counsel for the EC, Mr James Quashie-Idun, who moved the application, noted that it had been brought pursuant to Rule 69 (a)(4) of the Supreme Court Amendment rules 2012, CI 74, that respondents may apply to the court for further and better particulars on filing an answer.

He argued that after filing their answer, the EC made specific references in respect of which they requested the court to order the petitioners to provide further and better particulars relating to six aspects of the petition.

Mr Quashie-Idun said the petitioners in their petition alleged that in some polling stations during the December 2012 elections, certain voters were allowed to vote without verification and for which reason those centres should be named with their codes.

That, counsel argued, was important having regard to the fact that there were 26002 polling stations across the country and another allegation that different results were recorded for polling stations with the same code had to be provided.

Counsel further said the petitioners alleged that there was widespread instance of no signatures by presiding officers and for that reason the polling stations affected should be named while another allegation that there was a gross and widespread irregularity and malpractices in 4,709 polling stations entitled the EC to know which areas those allegations took place.

He said since the court was a court of first instance it should look at all particulars so that nobody was taken by surprise.

Furthermore, he said, since it was the petitioners who had alleged, the onus of proof was on them and it was not for the EC to go and look for information.

Mr Tony Lithur, counsel for the President, also argued that the rules of petition were not different from pleadings and that the petition was not against the whole presidential election but 4709 polling stations.

He said in order to ground a cause of action it was essential to isolate and identify the polling stations to which the allegations of irregularity had been made.

"When the petitioners seek to order to annul votes in 4709 polling stations it is not enough to mention only numbers but they must be identified by names and these particulars form an essential part of petitioner's cause of action," he said.

Mr Lithur said the petitioners must be made to name the polling stations, their code numbers, and constituencies in which the alleged irregularities took place, as well as places where non-biometric registered voters were also allowed to vote.

Mr Addison opposed the application and indicated that what the EC was asking the petitioners to provide was indeed the evidence which the rules did not allow them to lead.

He said the petitioners in their petition set out the particulars of violations and irregularities to which the respondents also categorically denied in their answers while the EC had custody of all the original forms.

Counsel said by giving further and better particulars meant the petitioners were leading evidence in the matter.

After Mr Addison had argued, Mr Tsikata stood up to make his submission, but he was opposed by Mr Addison who said he did not know in what capacity Mr Tsikata was arguing, since he had not filed any process in the application.

Mr Tsikata said in his answer to the petition, he made it clear that he would pray the court to strike out certain paragraphs in the petition as they lacked particulars.

In the ensuing debate, Mr Justice Atuguba announced the court would take a short break and then pronounce on the matter.

On resumption, Mr Justice Atuguba announced that by a decision of 8-1, Mr Tsikata could not be heard on the application for further and better particulars.

The court adjourned to Thursday, January 31, 2013, to enable Mr Tsikata to file an affidavit in opposition to the application for interrogatories.

The other justices are Mrs Justice Sophia Adinyira, Ms Justice Rose Owusu, Mr Justice Jones Dotse, Mr Justice N. S. Gbadegbe, Mrs Justice VidaAkoto-Bamfo, Mr Justice Julius Ansah, Mr Justice Anin Yeboah and Mr Justice Paul Baffoe-Bonnie.
Source: Daily Graphic/Ghana

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