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On Wednesday February 3, 2021, the petitioner for the 2020 presidential election asked the Supreme Court for permission to inspect the original documents that the 1st respondent (chairman of the electoral commission) relied on to declare the results presidential elections on December 9, 2020.
Arguments
The petitioner
Counsel for the applicant argued the motion for production of original documents in the custody of the first respondent for inspection. Counsel for the Applicant stated that the Applicant sought to inspect the originals of the documents referred to in the Application due to the differences in the figures presented by the First Respondent. And that, it was necessary to be “clear” on the figures used for the declaration.
The petitioner further argued that unlike the 2012-2013 election petition for which the petitioner’s request to inspect the original documents was based on “wrongdoing” that characterized the 2012 presidential election, the petitioner in 2021 no ‘had not provided any document but relied instead on the “Declaration” of the 1st Respondent, and that acceptance of the request will guarantee the applicant a fair trial (Article 19 of the 1992 Constitution). The petitioner also argued that the inspection of the original documents is based on “Transparency and necessity”.
The 1st respondent
Counsel for the first respondent opposed the claim on the grounds that no claim had been made by the claimant in the 21 days preceding the filing of his motion. Wednesday February 3 was the 34th day after the petition was filed and the petitioner had not acted in tandem with CI 99 in time to file the request. It was further argued that the burden of proof was on the applicant and that it could not be transferred to the first respondent.
In addition, the petitioner’s two witnesses (Asiedu Nketia and Kpessa Whyte) admitted into evidence that they hold copies of all relevant forms, but instead chose to present “samples” of the documents in evidence.
In response to the argument about the differences in numbers put forward by the first respondent, counsel for the first respondent stated that C1 127 indicates how the numbers are to be obtained in Regulation 44 (10), Form 12. The first respondent added that during the cross-examination of the Applicant’s first witness, Exhibit D (Ayensuanso constituency) in the Eastern region explained these differences.
The 2nd respondent
Counsel for the 2nd Respondent also opposed the request on the grounds that the burden of proof and the burden of persuasion were on the Applicant.
The 2nd Respondent argued that the Applicant had to prove that the duplicate documents in his custody are different from the original documents which he seeks to inspect and that the Applicant refused to produce any documents in court and instead wanted to inspect the original documents which would help the applicant to pursue his case.
In the meantime, the Applicant has not produced the “true copy” of the documents which he seeks to inspect to challenge the authenticity of the original documents in the custody of the First Respondent. The petitioner provided no evidence of lack of transparency and sought to use the petition to “evade the burden of producing evidence” before the Court. Counsel for the 2nd Respondent further argued that the Applicant’s claim did not meet the legal necessity test and, therefore, was completely unfounded.
decision
The Supreme Court justices (JSC) unanimously concluded that the applicant had failed to demonstrate that he did not have copies of the documents he seeks to inspect. In addition, the petitioner’s own witnesses admitted to having in their possession the duplicates of the documents.
However, no justification had been presented to justify the exercise of his discretion to grant the request and no question of authenticity had been raised by the applicant. As a result, the Supreme Court dismissed the claim.
Some legal references
In the petition for the 2012-2013 presidential election, the then petitioner requested permission from the court to inspect the following original documents from the electoral commission;
a. The results collection forms for all collection centers (constituencies) for the presidential election;
b. Pink leaf declaration forms for the 26,000 polling stations.
The Supreme Court, JSC Atuguba Presiding, ruled that: “ We believe that when a party is already in possession of a copy of a document referred to in the pleadings of another party, it is unnecessary to ask or that the court makes an order for and making copies of the document in question. Under the Evidence Act 1975 (NRCD 323), section 166, copies of these documents are admissible to the same extent as the originals in the custody of the second defendant, Electoral Commission ….. “(Decision of the Supreme Court in the 2012-2013 election petition.)
And also, article 166 of the law on evidence. 1975 (NRCD 323) under the sub-heading: “DUPLICATE TREATED AS ORIGINAL” provides that:
“A duplicate of a writing is admissible to the same extent as an original of that writing, unless
a): a real question arises as to the authenticity of the original or duplicate, or
b): in the circumstances, it would be unfair to admit the duplicate instead of the original ”.
Conclusion
Fair trial and necessity
On the issue of fair trial and necessity, the law places them under the discretionary power of the JSCs. And in the opinion of the judges, no irrefutable evidence was put forward by the applicant to compel the exercise of such discretionary power.
Professional misconduct and declaration
The arguments put forward by the applicant’s lawyer were no different from the arguments raised by the applicant’s lawyer in the 2012-2013 trial.
The orientation of the petitioner’s lawyer in the 2020-2021 trial was to point out the differences in features that informed the similar request for “inspection of original documents”.
That is to say “professional misconduct” (2012-2013) and “Declaration” or “differences in published figures” (2020-2021). It may have the same or similar meaning in law. Inappropriate professional conduct, illegal or neglecting the declaration of presidential results, which, according to the JSC, could not be proved by the applicant to compel the Court to grant leave of the applicant’s request.
The previous ones
In view of the 2013 and 2021 rulings on the request to inspect the original presidential petition documents, it is evident that the Supreme Court’s decision will inform future presidential election petitions, unless otherwise provided by the 1975 law on evidence (NRCD 323), article 166.
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