[Fcc on. fa BL OS..an INTHE SUPERIOR COURT OF JUDICATURE 6, INTHE SUPREME COURT OF JUSTIGE © 3 ‘ACCRA AD.2020 FAN ath ‘WRIT NO. Ji5/2024 ARTICLE 64 OF THE 1992 CONSTITUTION AND SUPREME COURT RULES, 1996 (C116) (AS AMENDED BY C.1.74 AND Cl. 99) AMENDED PRESIDENTIAL ELECTION PETITION PURSUANT TO LEAVE GRANTED BY THIS COURT ON 14TH JANUARY 202 PRESIDENTIAL ELECTION HELD ON 7TH DECEMBER 2020. JOHN DRAMANI MAHAMA PETITIONER, No. 33 Chain Homes ley Drive ‘AND 1. ELECTORAL COMMISSION sS"RESPONDENT National Headquarters 6th Avenue Ridge ~ Accra 2. NANA ADDO DANKWA AKUFO-ADDO 2" RESPONDENT House Ko. 02 Onyaa Crescent. Nima Accra WRITTEN SUBMISSIONS FOR AND ON BEHALF OF THE PETITIONER IN OPPOSITION TO THE RESPONDENTS? PRELIMINARY LEGAL OBJECTION THAT THE PETITION DISCLOSES NO CAUSE OF ACTIONINTRODUCTION ‘This written submission Is for and on behalf of the Petitioner. It is in response to the Respondents’ preliminary legal objection, which, as formulzted in the orders of the court on January 20, 20:3, was: “whether or not the Petition discloses any reasonable cause of action. ‘We will pray the Court to dismiss the objection as being without merit. ARGUMENTS ‘This written submission will show that, contrary to the Respondents’ claim, no basis exists for regarding the Petition as disclosing no reasonable cause of action. For this Petition to be considered or treated as not disclosing 2 reasonable cause of action, the Respondents must show that the facts forming the basis for the Petition are such that, even if they are assumed ‘to be proven, will be incapable of securing for the Petitioner a remedy at law. Tre fundamental principle that guides the Court in determining whether a pleading discloses a reasonable cause of action is that the facts alleged in the pleadings must be assumed to be true, The Respondents, in miahing a case thet the pleadings do not disclose 2 cause ‘of action, are not allowed to rely on allegations of facts which are outside the four comers of the Petitioner's pleadings. Extrinsic evidence cannot be resorted to, ‘The crux of the Petitioner's case is that the 1 Respondent conducted a Presidential election in respect of which Its Chaitperson ended up declaring the 2° Respondent as having garnered mere than 50% of the valid votes cast. However, when the figures that the Chairperson of the 4 Respondent herself publicly pronounced as the basis of the declaration ae taken together with the assumption, she made in respect of a constituency whose results were not yet available, the 2°° Respondent got less than Sot of the valid votes cast - see paragraph 16 of the amended Petition.‘The Petitioner alleges Constitutional and Electoral Law Breaches and rmalpractices, including that the Chairperson of the + Respondent, while collating the results of the election, violated key provisions of the Constitution and a series of electoral laws, thereby making the declared results of the election and the declaration she made invalid - See paragraphs 20 and 2 of the amended Petition. The Petitioner, for instance, alleged in the Petition that the ** Respondent, its Chairperson and certain officials padded votes in the election in such a way that the votes that the Chairperson of the 1 Respondent allocated to the 2% Respondent became considerably more than the votes that the 2™ Respondent actually obtained in the election ~ see paragraphs 31 and 32 of the amended Petition. ‘The Petitioner made it very clear in paragraph 32 of the amended Petition that: “exhibit “F" is a spreadsheet covering sample details from 32 constituencies showing vote padding by the 1* Respondent in favour of the 2" Respondent. When the votes 2% Respondent obtained in all polling stations as shown on their respective pink sheets in these 32 constituencies are aggregated, the resultant figure differs from the figure that was declared by * Respondent for 2% Respondent as captured on the summary sheets of the respective constituencies. They show that more votes were added to those of 2% Respondent than he had obtained.” Obviously, evidence of the entire population (of which a sample is outlined in Exhibit “F") of the padded votes is a matter for the trial, The + Respondent admits in its Answer that there were errors in figures ‘announced by its Chairperson in her declaration but sought to explain tthe alleged mistakes by saying that the errors were inadvertent ~ paragraphs 21 of the r* Respondent's Answer.‘Azu Crabbe C.J, in Harlley v. Ejura Farms [3977] 2 GUR 17, decision shat applied the predecessor rules of court similar to the current Order tt Rule 18 (1) and (2) of Cl 47, elaborated as follows on the principles at stake in determining whether to strike out based on the absence of a cause of action: the critical question to determine is whether or not the applicant's writ of summons and the statement of claim disclosed a cause of ction ageinst the respondents. The respondents’ application to swike cout the applicant's pleadings, was made, as I have already said, under Order 25, 4 of the High Court (Civil Procedure) Rules, 1954, and under the inherent jurisdiction of the court. The practice under that rule and under the inherent jurisdiction of the court is well-established. Specking about the exercise of the power under the rule in Ghana Muslims Representative Council v. Salifu [1975] 2 GLA. 246, CA. said at p. 251: “It is cleerly a matter in the Judicial discretion of the judge, and a pleading will only be struck out under the rule in a plain and obrious case, where itis apparent that even ifthe facts are proved, the plaintiff {snot entitfed to the relief he seeks.” ‘Again, | seid in the same case at p. 264: “The court will not permit a plaintiff to be ‘driven from the judgment seat,’ without considering his right to be heard, ‘excepting in cases where the cause of action is obviously and almost incontestably bad’: per Fletcher Moulton L.J. in Dyson v. Attorney-General [1911] KB. 410 at 1.419, CA. And again, as the Lord Justice sai later in the same case at p. ‘0: ‘an order of this kind ought not to be made where there is any reasonatle ground for argument as to the maintainability of the action.” | also cited the case of Lawrence v. Lord Norreys (1890) 15 APp. CaS. 210 at p. 216, HL. where Lord Herschell described the practice under the inherent jurisdiction of the court. This practice was clearly explained by10. banckwerts LJ In Wenlock v. Moloney [1965] 2 AIIE.R. 874, at 874, CA. where the learned Lord Justice said: “The practice under the former rule, R.S.C, Ord, 25, r. 4, and under the inherent jurisdiction of the court, was well settled. Under the rule it had to appear on the face of the plaintiffs pleading that the action could not succeed or was objectionable for some other reason. No evidence could be filed. In the case of the inherent power of the court to prevent ‘abuse of its procedure by frivolous or vexatious proceedings or proceedings which were shown to be an abuse of the procedure of the court, an affidavit could be filed to show why the action was objectionable. ....but, as the procedure was of a summary nature, the party was not to be deprived of his right to have his case tried by a proper trial, unless the matter was clear.” (Emphasis supplied). More recently, in Nene Flesu Gbile Gbenartey And Madam Dede Glie v. Netas Properties & Investment, Emmanuel Adolf Tagoe and Lands Commission [2014] DLSC, 3008, a trial judge considered and granted an application to summarily determine and, thereby, terminate proceedings after issues have been set down for trial. The Court held that the procedure that the trial judge adopted constituted a grave miscarriage of justice. The Court explained thus: ‘ut therefore follows that this procedure of terminating proceedings by summary process should be applied only in cases where the action is clearly unsustainable, plain and obvious that itis beyond doubt that the ‘case 1s unarguable frivolous and vexatious, and even legitimate ‘amendments could not cure the defect. See: HUBBUCK & SONS LTD v WILKINSON HEYWOOD & CLARK [1899] 1 QB 86, DRUMMOND-JACKSON v BRITISH MEDICAL ASSOCIATION [1970] 1 WLR 688, REPUBLIC OF PERU v PERUVIAN GUANO [1887] 1 Ch 465, EMERSON v GRINSBY TIMES & TELEGRAPH CO. [1926] 42 TLR 238.(emphass supplied) How could it be plain end obvious that a Petition that alleges (s) that the result that the Chairperson of the #* Respondent deciared, on the figures she used, was in breach of the Constitution (2) that figures supplied by the Electoral Commission did not, at all, reflect the actual results of then %. lection; (3) that, indeed, the #* Respondent, while collating the election results breached significant constitutional provisions and other electoral laws, disclose no reasonable cause of action? How ist possible that such grave allegations of facts in a public election in a democracy, when proven, would not entitle the Petitioner to a legal remedy from this court? In Okofoh Estates v. Modern Signs Ltd & Anor (1996/1997) SCGLR 224, also cited before the Court of Appeal, the Supreme Court quashed a High Court decision of Essiffie-Bondzie J.A., holding that the judge had erred on the face of the record and thus gone outside the bounds of his jurisdiction in taking affidavit evidence into account in an application brought under Order 25 rule 4 of the old High Court Rules LIN 140. The court ordered that the trial take its normal course. Her Ladyship Sophia ‘Akuffo JSC (as she then was) considered that: “..the application before the High Court, being an application under Order 25, r 4 of LN 140A, the learned judge erred in taking into account extrinsic evidence.” In judgment, Edward Wiredu JSC (as he then was), said, at page 253: “The summary way in which the court dismissed this case erroneously denied the plaintiff a hearing, a denial which amounted to a violation of fundamental rule of natural justice. It was not within the competence of the High Court on the available materials before it, to have dismissed the plaintiff's ation summarily.” (Emphasis supplied). ‘The Supreme Court in Amidu v Kufuor & Others [2001-2002] 2 GLR 510, ‘also underlined the need to avoid a judicial hushing up of unconstitutional conduct: “The question then is should an alleged infringement of the fundamental law in the circumstances indicated in this opinion be given a judicial hush through a summary dismissal of the plaintif’s case? I do not think so unless, of course, itis very clear ‘that the action is not maintainable on some good legal ground, or that it would be improper for this court to exercise its jurisdiction in the matter.” (per Kpegah JSC at 600)14 “This Court stated emphatically that its power to strike out pleadings on this ground must be sparingly used. Thus, in Appiah i v. Boakye [1993 ~ 94] 1GLR 417, 424 ~5, this Court held that: “These rules give the court judicial discretion to take that course at eny stage of the proceedings, and in appropriate ‘cases. But the judicial discretion, given by these rules, ought to oe. exercised. sparingly and_anly in plain, obvious and simple cases, These rules do not apply to cases which are susceptible not only toarguments on serious points of law but also they do not extend to cases in which, from the pleadings, the facts are in dispute and therefore require evidence to resolve them. Thus, so long as the pleadings raise some questions fit to be decided by evidence as in the present case, the mere fact that a party's case or dejence may be weak is no ground for striking it out under these rules.” ‘As Order #1, Rule 16(2) provides, where an application that a pleading discloses ro reasonable cause of action is brought, “{nJo evidence whatsoever shall be admissible” similarly, in Attorney-General of Duchy of Lancaster v London and North Western Railway Co [1892] 3 Ch. 274 at 278, CA, Smith, L, explained: “it seems to me that when there Is an application made to strike ‘out a pleading, and you have to go to extrinsic evidence to shew that the pleadings is bad, that rule does not apply. It is only when upon the face of itis shewn that the pleading discloses no cause of ‘action or defence, or that iti frivolous and vexations that the rule applies.” Inthe oft-quoted English case of Wenlock v Moloney [1965] All ER 871, [1965] 1 WLR 1238, the plaintiff's claim of damages for conspiracy was struck out after a fourday hearing on affidavits and attached documents, the Court of Appeal reversed the decision. Danckwerts LJ said of the irherent power of the court to strike out:1. 8. “.. this summary jurisdiction of the court was never intended to be exercised by a minute and protracted examination of the documents and facts of the case, in order to see whether the plaintiff really has a ‘cause of action. To do that, is to usurp the position of the trial judge, and to produce a trial of the ease in chambers, on affidavits only, without discovery and without oral evidence tested by cross: ‘examination in the ordinary way. This seems to me to be an abuse of the inherent power of the court and not a proper exercise of that power.’ (See [1965] 2 All ER 871 at 874, [1965] 1 WLR 1238 at 1244.) (Emphasis supplied) Sellers LJ also said that he had no doubt that the procedure ‘adopted in that case had been wrong and that the plaintiffs case could not be “stifled” at that stage.” ‘The Respondents have laboured under the misapprehension that the Petition limits its challenge to the validity of the election result declaration only (and not what they call “the actual election”). For instance, the #" Respondent states in paragraph 43 offs Answer that: ‘4@ Respondent States that the Petition ought to be dismissed, also because Petitioner does not challenge the validity of the lection conducted throughout all the 38,622 polling stations ‘and the 311 special voting centres in the country or contest the lawfulness of the votes obtained by any of the parties to the Election.” The 2™ Respondent, following in the direction of the ** Respondent, also argued in paragraph 29 of his amended Answer as follows: “=p® Respondent repeats emphatically that Petitioner has neither challenged the conduct of the election itself nor the validity of the election. The instant action is not an election petition properly so-called and same ought to be dismissed in imine19. 20, 2 Subsequently, in his written address in support of the preliminary ‘objection, the 2" Respondent argues in paragraph 22s follows: “The Court will notice, upon a careful scrutiny of the case of Petitioner, that same does not constitute an attack on the voting process, counting of ballot and declaration of results of the election held throughout the 38,622 polling stations and the 311 special voting centres. The Petitioner in this action does not ‘challenge the actual election or declaration of results in any polling station in Ghana on 7" December 2020, neither does he challenge collation of votes at Constituency Collation Centre nor cat RegionalCollation Centres.” ‘The Respondents seek to draw a line between (a) the declaration of an election result, and (b) the conduct of the election ~ voting, counting ‘and collation of votes. From this, the Respondents advance 2 proposition that the Petition, to the extent that it (by the Respondents? ‘own joint self-serving misconception) falled to challenge what they chose to call “the actual conduct of the election”, does not amount to what the 2" Respondent in particular decided to call “an election petition properly so-called”. ‘Aside from the obvious fact that the conduct of an election vitally includes vote counting as well as the collation process and the eventual declaration, we submit that it is entirely false to claim that the Petition does not attack the actual conduct of the election in any Polling Station, Constituency Collation Centre or Regional Collation Centre. For instance, Paragraph 31 of the Amended Petition states as follows: “exhibit “F" is a spreadsheet covering sample details from 32 constituencies showing vote padding by the 1 Respondent in favour of the 2 Respondent. When the votes 2” Respondent ‘obtained in all polling stations as shown on their respective pink sheets in these 32 constituencies are aggregated, the resultant figure differs from the figure that was declared by Respondent for 2% Respondent as captured on the summary22. 23. co sheets of the respective constituencies. They show that more votes were added to those of 2" Respondent than he had obtained.” ‘There can be no doubt that an attack on the declaration of an election result as unconstitutional, especially where, as in this case, itis based on the figures announced by the Returning Officer for the election, is @ challenge to the validity of the election itself within the intendment of ‘Article 64(1) of the Constitution. itis a valid challenge to the election ‘within that intendment of Article 64(1) and, more decisively, when that Article is read together with Article 63(3)- ‘An election is a long process of several layers and points which goes from the issue of a Writ of Election under Regulation 4 of the Public Elections Regulation, 2020 (Cl 127) and ends at the gazette notification of the result of the election under Regulation 49 of CI 127. Any process in between these two points is an essential and integral part of the ‘actual election in respect of which the validity of the election may be challenged under Article 64(1) of the Constitution. It would be absurd to claim that after even a perfectly conducted process of votes being cast, where the Returning officer makes a declaration not consistent with her constitutional powers, this is not a challenge to the validity of the election. Returning officers would then be unchallengeable even if they made false declarations, not consistent with the actual tallies of votes and in defiance of their constitutional and statutory responsibilities. ‘The #* Respondent, which admits errors in the declaration made by its Chairperson and has proffered purported “corrections” and corrections” of earlier “corrections”, is totally out of order inmaking @ claim that the Petition discloses no cause of action. Equally, the 2°? Respondent, who also admit that errors were made in the declaration of the Ctairperson of the Electoral Commission and whose own representative in this court, as testified to in the witness statement of Petitioner's witness, Asiedu Nketia, has stated that the 1“ Respondent «will show in these proceedings that votes were padded in favour of the 10Petitioner, cannot seriously be contesting that the Petitioner has a cause: of action. MM, CONCLUSION 25. We pray this honourable Court to dismiss the preliminary legal objection: and proceed to order the Respondent to open their defence and be subject to the accountability requirements and standards of @ public office, DATED AT LITHUR BREW & CO THIS 27TH DAY OF JANUARY 2021 i ‘TONY LITHUR. SOLICITOR FOR PETITIONER SSOLICITOR'S LICENCE NO. eGAR 00278)21 Law nm reais ee o004734 THUR ATE Ee TaN pas AA To: owns tao me e022 “THE REGISTRAR SUPREME COURT ACCRA, AND COPY EACH FOR SERVICE ON THE ABOVE-NAMED 1ST AND 2ND RESPONDENTS OR THEIR SOLICITORS: 1. JUSTIN AMENUVOR, AMENUVOR & ASSOCIATES, NO. 8 NII ODARTEY OSRO STREET, KUKU HILL (FRONTLINE CAPITAL ADVISORS BUILDING), OSU, ACCRA. AKOTO AMPAW, AKUFO-ADDO, PREMPEH & CO., 67 KOJO THOMPSON ROAD, ADABRAKA, ACCRA uList of Authorities Relied on 4. 1992 Constitution 2. Public Elections Regulation, 2020 (Cl 127) 3. Harlley v. Ejura Farms 1977] 2GUR 173 4. Nene Fiesu Gblie Ghenartey And Madam Dede Gli v. Netas Properties & Investment, Emmanuel Adolf Tagoe and Lands Commission [2014] DLSC, 3008 ‘Amidu v Kufuor & Others [20012002] 2GLR 510 Appiah itv. Boakye [1993 - 94] 1 GLR 417, 424-5 Harlley v, Ejura Farms (1977 2GUR 179 ‘Attorney-General of Duchy of Lancaster v London and North Western Railway Co, (1892] 3 Ch. 274 at 278, CA 9. Wenlock v Moloney [1965] 2 All ER 871, [1965] 1 WLR 1238 2