Live: Election 2020 Petition Hearing: Court Day 6 - News Desk on JoyNews (29-1-21)

[Music] oh okay may please my lord justina manuevo appears for the first respondent with me esoma asamoah okay if you play this your lordships alcotron powell appears for the second respondent and laws with me and my colleagues frank davis quaku surfy and yeah my thoughts our first business is ready we have indicated that depending on the response to the request to admit facts um there may be a supplementary statement from him i i don't know whether your lawsuits want us to make a formal application for that supplementary statement or whether based on our indication in the in the statement in the witness event that is filed um once we confirm the status of the request to admit facts that will be taken as granted because i mean i just want to be clear so we we are guided appropriately i'm sorry i want to take the witness very well do in the name of almighty god's word do in the name of the almighty god's word not evidence i shall give that the evidence i shall give in this case in this case shall be the truth shall be the truth the whole truth nothing but the truth and nothing but i shall give in this case in this case shall be the truth shall be the truth the whole truth nothing but the truth and nothing but this have been god so help me god allah in english huh i believe the procedure since it's not expressly provided in cr99 i believe the procedure is as provided in ci 47 in respect of witness statements i just needed to be clear maybe so we're getting a copy of the file copy of the witness statement yes so that we can what we have filed across the nation will follow yes just so that we are not caught by time we have objections to certain parts of the witness statement and we would apply to the court to have those parts struck out as not relevant nor based on the pleadings of the um practitioner or otherwise scandalous and prejudices unfairly mr trump the witness is here to identify the witness statement so just wait i'm just having the cut with notice because it is it is sometimes assumed that if you keep quiet any tender sitting we don't turn down evidence so when he comes to the box and he relies on it after he has been shown he has been shown he relies on it then it becomes evidence then you if you have any objection you can raise it yes that's it now it is not evidence before us please give your full name to the court i'm johnson and you have filed a witness statement on behalf of the petitioner yes my lord can you identify what the deputy registrar has made available to you and confirm that it is the witness statement that you have filed yes my lord this is a witness statement that i have found i always wish to tender that witness statement or it's taken it's adopted by the player very well very well that's procedure as my lord as i've said we are objecting to certain paragraphs of parts of some of the paragraphs in the witness statement of mr johnson aside on one on the ground one that they are not based on the pleadings two they are not they tend to unduly prejudice some of the parties to this suit in our scandalous and accordingly we would pray [Music] that those paragraphs or parts of those paragraphs be struck out as such [Music] grounds of objection the first one was that it was not based on the pleiades yes and the second one unduly pre-judicial like this and and scandalous yes what is the third one the third ground yes oh okay my lords i believe that it's well established that apart is evidence how could you identify the paragraphs first i find to paragraph 21. yes um you have set up three grounds which of those three grants is applicable to paragraph 21 what i'm asking you to do is tell us your ground of objection within the three before you start your argument so we can follow you my lady my lady paragraph 21 is not pleaded yes there's nothing in the pleadings to that effect yes the bleedings this this evidence that they are seeking to lead is not borne out by the cleveland smiling it's not based on it's not based on okay my my my lords we also object to do you mean the reference to the website in that paragraph it says moving and changing and subsequently deleted these are very material facts if they sought to rely upon it they should have pleaded it my lords who also wish to take objection to paragraphs six and seven as completely out of place out of place in the evidence in chief what does that mean it's not admissible my god because it's not admissible because it was not part of their pleadings their lawyer may raise that matter before the court in address that this cannot be part of their evidence success my lords we also take objection to to that portion of paragraph 25 which starts on page six of their witness statement thus the first respondent in respect of the declaration of presidential election betrayed the determination on the part of mrs jean aduku mensah as returning officer for the presidential election and setting officials of first respondent to have second respondent installed as president of ghana by hook we think that this is highly prejudicial and scandalous let's just let this there's no pleading that can support this type of scandalous and prodigious health piece of evidence and we pray that it is struck out on those grounds my lord and i would rambam yes so we are we are claiming is it the sentence starting from page five in fact in fact yes so it starts from page five yes ends at yeah yes it starts from page five our next objection relates to paragraph 26 from the sentence that reads the chairperson of first respondent this is jain adukwe allowed herself to be biased by her prejudice in favor of second respondent who appointed her in august 2018 and with whose wife miss jin adukuem mensah has a close familiar relationship this is mensah was doused at all material times in the conduct of her responsibilities biased by prejudice in favor of the second respondent and against the petitioner my lord we pray that this part of prague 26 be expunged as scandalous prejudicial and not based on the pleiadians these are very serious material allegations of fact and they were not pleaded yes another next part we take objection to relates to paragraph 28 which the fortune breeds the secrecy and lack of transparency regarding figures thrown up by one or more officials of first respondent seeking to justify after the event mrs jean adukai mensah's 9 december 2020 purported declaration and that undermines the whole attempt at correction of what was indisputably an error and in an error-driven declaration and shows in my law that the critical passage shows that figures were simply being cooked to achieve a pre-determined outcome that had nothing to do with the actual votes cast in the presidential election so does your objection start from the cpc or start from simply it starts from shows but you can only understand the shows if you relate to it to what comes before understand that the specific objection relates to the showing that the figures were simply being cooked lords we say that this portion of paragraph 28 is extremely prejudicial no facts have been pleaded to that effect and ought to be struck out accordingly yes my lord paragraph 30 of the witness statement right my lord strangely seeks to suggest that the first respondent because of his bars in favor the second respondent somehow you tell us what you are getting to the the the whole law and the whole of the whole of it yes the whole of paragraph that a lot it seeks to suggest that the new regulations were organized by the first respondent with the object of ensuring that the process of coalition and aggregation of votes were introduced without any good reason my lord is talking about a piece of legislation it is the witness may not speak to the legal validity of a peaceful so is it is there an objection that is not based on feelings or that it's unduly prejudices or it's scandalous you've shown that it's not based on the pleadings no is it not and furthermore it is unduly scandalous and my lord our next objection next objection my laws relate to paragraph 32 my lords this was not pleaded by the respondents hey the petitioner and my lord he released to 275 summary sheets results my lord nowhere in the petition has there been any reference to any 275 summary sheets and the petitioner had all the opportunity to do so if he intended to rely on this evidence in the trial he failed to do so and is seeking through his witness statement to improperly introduced it through the back door should be and we pray therefore that it be struck out my lord indeed if your losses take a look at the petitioner's amended petition even exhibits were added to their petition but they should not have been and so they had every opportunity even at the time of filing their petition to follow that flawed tradition but they didn't and now when they ask to write their witness statement they introduce this huge piece of evidence which they are included who has that distractor that's not based on the pleadings and consequently paragraph 33 which is a consequence of paragraph 32 should also in similar fashion be struck out okay as we've indicated it is well established that a party's pleadings are fundamental in determining the case he or she intends to make during trial the party's pleadings also notify the other side of the case that he will meet in court my lord the the significance of pleadings have been set out very clearly in the case of hamon and odoi 1982 83 two ghana law reports two one five at so sorry one two one five at one two three five to one two three six my lord i i i i know that this this statement of the law is very well known to your losses so i will not detain you with reading it right my lord i wish further to refer your lordships to the case of at the june at the jumo versus a begin day and another reported in 1965 ghana law reports 499. 1965 my lords gonna law report 499. which holds that in holding one and now this is the supreme court holding one to the effect quote although evidence is inadmissible to prove material facts we have not been pleaded yet when such evidence is abused at a trial without objection from council the trial judge is bound to take it into consideration unless we are making this objection to us not to fall into that trap and my lords we we wish in addition to refer to the evidence decree evidence acts up now my lord evidence acts section 51 my lord which means as follows for purposes of this decree relevant evidence means evidence including evidence relevant to the credibility of a weakness or essay declarant which makes the existence or non-existence of of any fact that is of consequence to the determination of the action more or less probable than it would be without it and sub 2 reads all relevant evidence is admissible except otherwise provided by any enactment and sub3 states no evidence is admissible except relevant evidence and my lord i'm not clear what uh lessons you want us to draw from um my ladies i'll shortly demonstrate if i'm created section 52 b states the court in his discretion may exclude evidence relevant evidence if the probative value of the evidence is substantially outweighed by the risk that the admission of the evidence will create substantial danger of unfair prejudice or substantial danger of confusing the issues now my lord the relevance of this piece of these provisions of the evidence act is that they confirm the position that any evidence that will be led must be based on their pleadings and be related to an issue in dispute and that readings evidence that spring from nowhere surprises the other party and and where they do cause therefore they provide a danger of substantial or unfair prejudice may be disallowed by the court and that is why we believe it is relevant a lot it is for these reasons with all due respect my attention has been drawn to paragraph 37 also yes the last of any paragraph where the weakness states i caught this conduct of setting officials a first respondent in padding the votes of second responders is in fact indicative of a well-hatched and sustained pattern of manufacturing numbers unrelated to the attra votes correlated at the various correlation centers with the swim sole aim of achieving the predetermined goal of the chairperson of the first respondent and the number of officials of the first respondent to half second respondent and constitutionally and unlawfully installed as president my lord this paragraph is extremely scandalous and what makes it worse is that apart from the so-called 400 4 000 plus party that they allege [Music] and they have not provided any further evidence or made any further pleading sorry indicating that there's a well-hatched and sustained pattern of manufacturing numbers unrelated to the votes there's nothing in either their petition or the yes there's nothing in their petition to that effect a lot i think it is significant that once the petitioner has been making these really scandalous allegations he has not provided one threat of evidence of his own tabulation of votes nothing throughout the petition not even in the resolution mr you take advantage of of that why are you worried no i'm saying that to show how totally inacceptable paragraph 37 is and it's short to be strata this is mr yes let me keep in you see the pleading is different from evidence yes pleadings can be struck out on the basis that is kinda lost listen but this is evidence and my lord if it cannot be stuck out it should it should know no if a pleading if a pleading is scandalous yes yes it is a basis for striking out very well yes but the evidence is quite different from me pleasing except that the evidence takes uh roots from their bleeding yes my lord and um our case is that these pieces of evidence are not based on their pleadings yes they are not based on their spleens and they should not be admissible being scandalous my lord we pray accordingly ask you what is wrong with paragraph six and seven paragraph seasons yes what is wrong with that this is a fact look at this yes what is what is wrong i thought our view is that those two paragraphs are not matters for his evidence-in-chief there are no matters of for for evidence in chief yes no so assuming we are assuming we are doing urathra and the witnesses in the box can't cancel asking whether in the course of this from this track is fire notice to admit that my laws in this trial is far from deliberately in the first place we want to make the point that the witness is a witness it's not a representative of the petitioner it's a witness my lord and if your lordships look at the witness statement he doesn't indicate that he has a power patterning and speaking on behalf of the the petitioner he is a simple witness of the petitioner when you led him he said he was on behalf of the petitioner he's the witness he's always a witness of the petitioner okay of the election of the environment and when i look at the evidence the weakness just because not just we are not in the high court we are in the supreme court exercising a special jurisdiction over the validity of election of a candidate so you have to limit everything your submissions and your crosses are missing to the validity of the election of the candidate and not a general trial in the high court so you're complaining about 323 how would that affect your case the validity of the election of the candidate as the witness made the near session that because of that uh votes and other things and whatnot so you look at it if there's nothing let the trap proceed otherwise we'll be going through this banter and they will spend the whole time raising objections and this and that so let's focus on why we are here my laws that is precisely what i'm trying to do my point a lot is that the petitioner in his petition has never said anything about some ratios indeed the petitioner in this petition in our view has not challenged the validity of the election it has simply picked on some errors in the announcements and the tabulation of the results he has not in these two paragraphs 32 and 33 the witness is also not saying anything about the validity of the election yes so why not keep quiet over it that's what i've been telling my students in advocacy lectures yes we will not keep quiet about it because it could be prejudicial it will cast a it may cast an unnecessary cloud over the elections it is not being pleaded and my lords i believe that they cannot lead evidence that is contrary to their pleadings thank you but i want to know whether mr maneuver has something to say about the witness statement yes justin yes my lord my lord i have nothing more to add to what mr kutampa has said thank you i associate myself with his submissions so [Music] my lord so we have to deal i believe with a very practical issue before i get into uh the responses quite a lot of objections have been raised uh you know more than 10 i believe in if it were a trial in which oral testimony was being given in evidence in chief there would be a series of objections at different points and then one could take it up and the practical difficulty i'm talking about is that as he was raising the objections we were busy trying to deal with it and we're frankly not i'm i should speak for myself i'm frankly not sure that i have listed all the objections is that because i can help you so we can help you yes we can check them out yes very well so what i was going to say my laws is that as we proceed with the responses we may need to come back to your lordships for the statement that you have recorded in respect of the objections so that the answers will be appropriate in terms of what your record shows that's what i meant by the practical solution to ensuring that we are addressing all the objections but we're ready to respond to each of the objections and guided by your record of the objection that pierce the first objection debate i hope you recorded the basis for the objection i said we're trying hard to record no no no i'm i know that it's very difficult to get to the very paragraphs he referred to yes i'm talking of the grounds for the objections which were one that yes the first one was in respect of paragraph 21 paragraph 21 then the second we went back to two paragraphs six and seven yes yes then he went to paragraph 25. paragraph 26 the portion not the whole the latter part of paragraph 25 yes yes then he went to paragraph 26 then went to paragraph 28 paragraph 30 paragraph 32 paragraph 33 a paragraph 37 yes then um i think that's all that's all that is all please can i can i go over i have the paragraphs but as i go on the particular ground that you get for each paragraph i may i mean no problem yes i have the paragraphs all right no yeah oh my god the the first paragraph and analyze i i start off with the fairly um elementary statement of the law that pleadings are not meant to be evident and my lords rule seven of order 11 makes clear that subject to this rule in rule 10 to 12 every pleading shall contain only a statement in a summary form of the material facts on which the party pleading relies for a claim or defense but not the evidence by which those facts are to be proved and the statement shall be as brief as the nature of the case admits that's a 20 elementary and well-known rule and if we take the various objections paragraph 21. is that and paragraph 21 follows paragraph 20. so if i may first refer to paragraph 20. in this unsigned press release first respondent introduced new figures for the total valid votes cast in the presidential election held on 7 december 2020 a copy of the set press releases are touched and marked as exhibit b and was available on first respondent's website www as of 11 45 gmt on 29th so even as late as just before the petition was filed we were pointing out that that document was available and paragraph 21 is making reference to the fact that following that press release the results being published by first respondent on this website became moving targets well that's evidence in respect of what happened to the numbers that were provided for in paragraph that that were mentioned that was that were alluded to in paragraph 20 and becoming moving targets subsequently deleted the changing figures from the website that is material evidence that undermines the figures that were in that press release because there were figures in the press release as we indicate an unsigned press release that's again um very clear and subsequently those were themselves being changed i cannot see how this is immaterial and melody's particularly in a situation where the witness statement of the first respondent that witness statement itself has different numbers from the numbers in the press release and the numbers in the declaration my thoughts i cannot with the greatest respect see how evidence about changing figures is not material in these proceedings that is not the point he said it says that this this paragraph 21 has not been pleaded it doesn't take his source from your pleadings so perhaps if you look at your paragraph 28 and 29 of the petition yes you may be able to respond to it but the the ground is that it has not been pleaded let me just yes on the pleadings if you look at your paragraph 28 and 29 28 and 29 and 30. in in of the pleadings we state on 10th december 2020 an unsigned press release of first respondent claimed that its chairperson mrs jonathan had inadvertently in quotation marks use the figure of so and so and then we continue in 29 in this purported corrective press release first respondent introduced two completely new figures for the total votes cast in the presidential election thus there was no correction properly so-called since to be valid a correction of a prime minister must correctly name the mistake to be corrected in this case the mistake to be corrected was itself mistakenly stated the numbers so and so are completely different and then paragraph 30 and seeking to justify the new figure put forward in the press release various adjustments to figures of votes cast for various candidates are made without any explanation and with a total lack of transparency that is fleeted and then it goes on in paragraph it goes on paragraph 31. i'm sorry and your lordships will recall that in in following your orders in terms of the filing of the witness statements we actually drew attention to this issue of the request to admit facts issues which normally would be part of the pre-trial and which therefore affects how we prepare witness for the trial so my laws the the point of paragraph six and seven is precisely to indicate to your lordships the parameters within which his evidence is being are being placed because those parameters are we are worried about mr don't get here is not the petitioner it's not a party strictly speaking he's just a witness as we rightly pointed out so let's let's let's look at it in this but my lord he is a witness of the petitioner and as a witness of the petitioner he can yes he can he can my lord my lord my lord my lord that are within his personal knowledge and those matters include processes which he is aware of i mean those processes are in fact a matter of public record literally because you see we don't want it sir we don't want a situation where under cross examination a question is put to him do you know anything about notice to admit my lord no no any situation you can arrest because you see here peace or not my lord he is or not and i'm sure that he will be able to take care of himself on those no no we want to avoid a a situation where maybe oh my my love will respect i i i i yes frankly there is no difference in terms of these particular paragraphs because the petitioner is not himself the lawyer filing those those processes the petitioners yes yes but the petitioner gives the instruction and a witness of the petitioner who is as aware as anybody else of those processes can speak to those processes because he's a witness of the petitioner and as a witness of the petitioner he familiarizes himself with processes that are filed and in fact more importantly as a witness as a witness and the point of those paragraphs very clear as a witness he is indicating to the honorable court that i am aware of these and that is guiding what i have to put in my witness statement that that is part of the point number one and that is why in fact before he went to the witness box i did draw your lawsuits attention respectfully to the fact that we wanted guidance on whether we needed leave subsequently after those uh you know issues are resolved with the search that we're making and your lawsuit said you should go into the witness vote so my lord i mean i have no doubt that the witness is able to address those issues in terms of his knowledge of the facts of what has been done on behalf of of of the petitioner i have no doubt about that in respect of paragraph 25 in respect of paragraph 25 and again paragraph 25 can only be read in conjunction with the prior paragraph in announcing the so-called in announcing the various so-called corrections and corrections of corrections no officer of first respondent engaged in any consultative process involving petitioner or his accredited agents nor did mrs gina duke mensah returning officer for the presidential election or first respondent notified petitioner or his agents that there was a reasonable basis to revise the figures as to the votes he petitioner and or second respondent obtained much less give them an opportunity to observe or participate in the processes by which those revisions were purportedly affected that is 24 to which no objection is raised then in 25 it goes on this referring back to what has just gone on this was clearly contrary to the responsibilities the chairperson of the first respondent and first respondent as a whole had by virtue of article 23 of the constitution which provides that quote administrative bodies and administrative officials shall shall act fairly and reasonably and comply with the requirements imposed by law and persons agreed by the exercise of such acts and decisions shall have the right to seek redress before a court or other tribunal unquote in fact the ever-changing figures put out in the unsigned press release and what was posted on the website of the first respondent in respect of the declaration of the presidential election betrayed the determination on the part of mrs join our documents as returning officer for the presidential election and certain official or first respondent to have second respondent installed as president of ghana on 7th january 2021 by hook or my crew now my lords in the in the in the pleadings in the pleadings in paragraph 33 i lost in fact if i may start actually from paragraph 20 of the pleadings i may even start from 19 because in 19 is the statement first and his chairperson visiting our departments are required in the conduct of their responsibilities in respect of elections to comply with the constitution paragraph 20 in declaring second respondent as the winner of the 2020 presidential elections on 9th december 2020 the chairperson of first respondent mrs gina de cormensar acted in flagrant violation of the 1992 constitution yes could you hurry to where you it it is your pleading that she intended to install the second respondent by hook or crook or where this evidence is take it takes its route in paragraph 21 we say that she first responded she was required to act fairly reasonably candidly and not arbitrarily or capriciously and then we go on in paragraph 24. we go on to point out that she was required not to be biased either by resentment prejudice or personal dislike and also requires them to exercise discretionary power in accordance with deposits of law so we are pleading the fact that these were requirements placed on her and evidence to show that she did not comply with those requirements is certainly available on the basis of those meetings and as i indicated in relation to the law and you then go on to draw the conclusion or to conjecture that she was determined to declare the second respondent as president by hook is not that just that's not a conjecture that's not a conjecture if they want further and better particulars of it of course they're entitled to us but it is not a conjecture and we are saying that these are matters that are demonstrated in the various pieces of evidence especially relating to ever-changing numbers on the website that will obviously be before you and in fact most of these are not denied it's not denied that there are changes and ever changing figure it's not denied that [Music] you know what is in the answer the figures in the answer to show that the statement or the feeling that there was a predetermined agenda to end in a particular way that's what i'm trying to find from you that is a necessary implication from the ever-changing figures that were supplied right up until the point of the answer and my lord that is a matter that circumstantially circumstantial evidence is obviously permissible and proving facts so hold on say hold on say so your response is that this um allegation of hook or crook is actually a con is actually intended to lead us to a conclusion that is made out of inference is that what you're saying it's it's based out of the circumstantial evidence the compelling circumstantial evidence is that you are making and you know inferences are alien yes and evidence it can be an address but not evidence yes my lord i said we are giving circumstantial evidence on the basis of which conclusions what you are describing as a procedure evidence is an inference you are making a new friends and evidence we don't do inferences i'm not gonna address on it these are not inferences we are saying there was a predetermined there was a predetermined agenda and we're saying that that predetermined agenda is evident from the ever-changing circumstances and from the refusal to act in accordance with the responsibilities to be fair and candid we say in paragraph 22 that she refused to entertain legitimate concerns placed before her regarding errors in the data she was proceeding to make the declaration on we say in paragraph 23 that prior to her making the set purported declaration mrs ginnardo cremesa had been notified by agents of petitioner of certain materials errors in the in the figures collated and then refused to accept a letter written by the ndc to her raising some of these concerns if if evidence cannot be given in relation to all these matters and how they lead to the the the inevitable conclusion of the pre-determined agenda then respectfully uh i i i don't know what else we're supposed to do in terms of providing evidence we go on we go on we go on we go on my lots are not finished we're gone we go on in paragraph 30 in in paragraph 30 in seeking to justify the new figure put forward in the press release various adjustments to figures of those costs for various candidates are made without any explanation and with a total lack of transparency my lord i mean one should with respect i mean take cognizance of the various elements of our paragraphs in the pleadings the fact that there's no explanation there's a total lack of transparency these are all things that have been pleaded and if evidence is being led in terms of the pre-determined agenda and the determination by hook or by crook to arrive at a certain result i cannot see how that evidence can be regarded as objectionable in any way they can cross-examine on that evidence they can seek to discredit him and say that he has no basis and and whatever but they we cannot say that that evidence is not admissible now my laws i believe the next paragraph was paragraph 26. the gazette notice is required to be based on the declaration actually made by mrs jean adukuer mensa as the chairperson of the first respondent i'm sorry that's our pleading 2026 of the witness statement of the witness statement yes the 2026 of the witness statement is where the chairperson of first respondent and first respondent are also not required under article 296 of the constitution to be biased i either by resentment prejudice or personal dislike in exercising any discretionary power they're required to exercise advice in accordance with due process of law the chairperson of first respondent mrs gene adequate means allowed herself to be biased by her prejudice in favor of second respondent who appointed her in august 2018 and with whose wife mrs binary mesa has a close familiar relationship mrs myself was thus at all times at all material times in the conduct of her responsibilities biased by prejudice in favor of the second respondent now my lords we have again we have again pleaded the requirement of compliance with article 296b and in turn in their answer yes and their answer paragraph 39 40 paragraph 40 of the answer in further denial of the petitioner's claims first defendant says that it complied with all the processes and procedures laid down by law for the conduct of the servants december 2020 presidential election with fairness to every candidate and without malice ill will or bias against anyone so there's a denial of our allegations there's a denial of that and therefore a witness that is speak and and and and it she actually goes on a paragraph the answer goes on in paragraph 41 to talk about in a video enhance transparency and public participation it took certain steps so clearly the answer of the first respondent shows her recognition that the issue of her bias is part of what has been pleaded and she is asserting in paragraph 40 that she did a first respondent well in fact respectfully that paragraph just says the first respondent it doesn't speak specifically about her so we should take the words as they are the first respondent says it's complied with all the processes and procedures laid down by law for the conduct of the seventh december 2020 residential with fairness to every candidate and without malice ill will or buyer so clearly there is an issue that is before this quote of whether there is bias to anyone or in favor of anyone or not where in your pleadings did you plead that there's buyers because the first respondent in a way is related to the the wife of the second respondent my lords we plead the 296 be buyers by resent either by resembling prejudice or personal dismissals of pleadings we don't plead law we don't do nonsense is the constitutional provision yes my lord we plead law in the context where certain facts related to the operation of that law are being contested because we have to state that the constitution has this requirement in order to point out that that requirement has but then they went further as you rightly pointed out in i think on the paragraph 40 yes and then they they pleaded in answer that they complied with the law and that they were not biased and they they they went through with the due process as required by law so yes yes but then if you go further and you we are concerned with the with the with the the the last paragraph of paragraph 26 i i we are not comfortable with that that is what that is your problem around the paragraph starting from the chairperson or first responder messaging message allowed herself to be biased by her prejudice in favor of the second responder who appointed her in august 2018. yeah and which and with whose wife message mensah has a close familiar relationship mrs mensah was does at all material terms in the conduct of her responsibility biased by prejudice in favor of the second respondent and against the petitioner this they are saying that this has not been pleaded this fact this evidence is not based on the previous we are saying respectfully that this what is contained in the witness statement is evidence of the pleading of non-compliance with article 296b because that is part of our case you must plead before i mean if that thing does not even appear in your playlist so how can it turn to become evidence the thing does not appear in your plea we have not read anything like this from your pleadings from the petition together should be a material fact um that based on order 11 rule 7 you should you should include in your pleadings my lords i am not of the view that that by itself is a material fact that should be reflected emilio let me be clear let me be clear bias bias could be related to a number of different factors a close familiar relationship is a potential element and if in spite of the close familiar relationship there is action taken that reflects due process transparency and everything then in that situation the close familiar relationship would not affect the conduct of the proceedings so it is really a matter of evidence whether in the context in the circumstances that we are dealing with here whether we have a situation in which that familial relationship has actually affected the conduct of the responsibility that is the matter of everything how does she respond to this this was not in your pleadings this was not in your pleadings are you not taking her by surprise well we don't believe that this takes her by surprise because this i'm sure it's not what i mean i mean look at the facts that are very well known today in fact they are facts but we didn't we don't know we're sitting here we don't know we read this we didn't know okay okay now those we are saying that in respect of paragraph 26 i'm concluding my response on paragraph 26 am i allowed to do that we are saying that in response to paragraph 26 these allegations of bias are sufficiently [Music] referenced in our pleadings in relation to the operation of article 296b and we're saying that the denials the denial that is contained in paragraph 40 that denial indicates that the petitioner is not taking the first respondent by surprise in respect of the allegations of buyers that are in the witness statement now that was in paragraph 28 i understand that the objection is to a portion of that paragraph and if your losses could clarify which portions yes the secrecy and lack of transparency regarding the figures thrown up by one or more officials of first respondents seeking to justify after the event mrs jonathan's ninth december 2020 purported declaration undermines the whole attempted correction of what was indisputably an error-ridden declaration and shows that the figures ensure that figures were simply being cooked to achieve a predetermined outcome that had nothing to do with the actual votes cast my lords i have referred already to our pleadings in respect of transparency and i have also referred to our pleadings in respect of these changing figures and if i may go over that again for the purposes of this response and we start from paragraph eight the claim that the percentage of votes cast votes obtained paragraph eight of the amended petition with the claim that the percentage of votes obtained by second respondent was 51.595 of the total valid votes that she has sold distinctly stated to have been hundred and 13 four five seven four was a manifest error as votes cast for second respondent with amount to fifty point zero nine eight another fifty one point five nine seven at four point five nine five percent they wrote erroneously declared and then in paragraph 12 which i referred to before we indicate that if the total number of votes standing to the names of each of the presidential candidates is summed up this will yield a total number of valid votes costs of one thirty one thirteen one two one one one one a figure that is completely missing from the purported declaration by mrs generic on 9th december 2020 and the purported rectification on 10th december so we have already intimated these initial changes and then we proceed as i indicated previously we proceed to make reference to the fact that this is in paragraph in paragraph 22 which i referred to before mrs jin had requirements are predetermined prior to the seven december 2020 presidential and parliamentary elections that she would announce the results within 24 hours after the close of polls consequently she refused to entertain legitimate concerns placed before her regarding errors in the data she was proceeding to make the declaration on prior to making the said purported declaration visibility requirements had been notified by agents of petitioner of certain material errors in the figures collated and then refused to accept a letter written by the ndc to raising some of this concern and the letter is is attached and then we also further uh indicate the lack of transparency that was involved in the purported corrective press release and this we do in paragraph 30 in seeking to justify the new figures put forward in the press release various adjustments to figures of those cars for various candidates are made without any explanation and with a total lack of transparency there's a direct reference to the lack of transparency in that paragraph and we go on further in in paragraph 31 to say that the so-called rectification of the errors in the proportion the declaration was itself egregiously wrong and we go on to provide so my lord in paragraph 33 if mrs gina do foreign officer of the presidential election had determined in good faith that her declaration on 9th december 2020 was an error her constitutional duty to be fair and candid and a lot that explains why we had reference to the constitutional duty in the in the pleadings that her constitutional duty was to be fa to defend candid required her among other things to acknowledge the error set aside her erroneous declaration and proceed on the path to correcting her error respecting the rights of candidates to participate in the processes towards the making of such a declaration so we indicate what transparency required we didn't just say lack of transparency at lunch and we go on in paragraph 34 to say that the unsigned press release of first respondent has no value in the determination of the validity of the declaration that mrs gina's requirements are made on 9th december 2020 especially as the issue of the release was not undertaken transparently and in accordance with due process of law and established practice including the participation of affected candidates through their respective agents so we have pleaded everything that we need as a foundation for pointing out that what was done was done secretly in the sense that it was done you know without reference to any of these candidates completely by themselves and not in accordance with the legal requirements for the participation of agents of the candidates i i mean all these paragraphs that i've adverted to are specific in reference to lack of transparency lack of contact consultation with anybody and my lords i mean i cannot see how the witnesses indication the indication that the secrecy and lack of transparency regarding figures thrown up by one or more officials of first respondents seeking to justify after the event mrs gina requirements and night december purposes declaration and the mind the whole attempt at correction of what was indisputably an error-ridden declaration and shows that the figures were simply being cooked to achieve a predetermined outcome that had nothing to do with actual votes cast in the presidential election for the various elections so for for the various candidates so milo the point we are making is that there has been sufficient bases laid in the pleadings for there to be evidence that shows that figures were just being cooked because the figures are coming out of nowhere and without reference to anything that is transparently communicated to anybody with the greatest respect i i i find it very difficult to see how any objective observer of the ever-changing figures that have been put forward can fail to see that we are not justified in talking about figures being cooked and mellows figures being cooked is simply an indication that the figures are you know just being thrown up unrelated to valid votes being cast countered and collated which is what it should be so my laws respectfully we would submit that there is a basis in our pleadings about lack of transparency lack of due process [Music] in respect of paragraph 30 and if your lawships could again perhaps read out what the ground the specific ground is so that skin for healthy paragraph 30 yes that is the whole slice um okay milos this again is not it's not a pleading of law at all this leading states in the new regulations promulgated and it's not it's not an issue about the validity of the constitutional instrument that that is not the issue in in the new regulations this is just a factual statement about how the new regulations operated in the new regulations promulgated by first respondent ci127 it now interposed between the strong room and the constituency correlation center without any good reason another layer of collation at its regional offices with regional summary sheets that is a fact it did that as a result of the constitutional instrument this led to results being sent from regional coalition centers which were at variance with the results collated at constituency correlation centers as a result of figures being altered by officials of first respondent exhibit c provides sample details of wrong aggregation of valid votes on the face of the summary sheet of some 11 constituencies the exhibit shows that the sum total of votes of valid rules obtained by all candidates varies from the figure recorded on the face of the summary sheets as the total valid for votes from each of these constituencies now my laws the statement there is quite clear about the interposition of the research relations centers as a source of errors and an exhibit exhibit c is also provided in the in the petition with the sample details now my laws it needs to be clear it needs to be clear that in this petition unlike perhaps in the 2012 2013 petition the petitioner did not come to court saying that are now four million votes of voters who have voted and now then because in some cases pinchies didn't have the presiding officer signature or there were duplicate serial numbers that in the nature of this petition the petitioner is saying that a certain declaration was made on the on the 9th of december it was publicly made we all heard it and the petitioner is saying that when you look at figures in that declaration itself those figures do not amount to compliance with a constitutional provision julie that's what they call now in this paragraph 30 what the petitioner is seeking to do is precisely to provide as it is said a sample of wrong aggregation and the petitioner is attributing that to the interposition of the regional coalition center so that is that is the import of that paragraph and that input is related to the lack of transparency pleadings that we clearly have essentially your pleading indicates that that interposition comes from the new regulation from the law isn't that your feeling the new regulation is i i i didn't hear the last bit of you the testimony of your of the witness is that the interposition uh the the new regulations interposed yes yes and that's the source of the trouble that's the source of the that's the source of the complaint yes in its operation the way it operated the way this new regulation was operated in practice and the objection is the objection is that it seems to suggest that the new regulation of first respondents was about ensuring that the process of collation and aggregation of votes were introduced without good reason and yet that was introduced through a law it was a law that it was a law that provided that framework and that is the and that is a complaint it was subsidiary legislation made by [Music] the elector of the first respondent and the witness statement is indicating that the operation of that it was a matter of law but you can operate a legal provision in a manner that leads to the wrong results and that's what we're seeing i mean you could operate you could operate the the creation of regional centers in a transparent way which does not lead to the results and so once again you're inviting us to make an inference or what my lord i'm not inviting just making an inference i'm saying that we have pleaded a lack of transparency we have pleaded a lack of consultation in respect of how these figures popped up and the witness statement is showing one of the ways in which that lack of transparency was was demonstrated in the actual conduct of the first respondent that is what the witness statement is seeking to do as a matter of evidence but mr chica there is nothing in the petition about this we call them coalition issues there is nothing in the petition that the correlation process resulted in changed figures or figures changing we have pleaded we have pleaded the fact that numbers were being changed by the first respondent without any transparency now this is not a big issue that if that is your peace it should be in the petition that a b c d from this polling station to this my constituency with this regional coalition center these figures changed there's nothing about this in the petition my lords the practitioner is not the returning officer for the presidential election but he's the one challenging the petition may i answer you the petitioner is challenging firstly on the basis that you made a declaration in which you put forward certain numbers on the on the face of your declaration those numbers do not warrant your exercising your constitutional responsibilities the way you did that is the basic point of the petition my my laws if i may finish my answer because i believe it's important for the answer and its fullness to be heard that the petitioner makes clear that her challenge is based on the fact that the person who is a returning officer that person has purportedly made a certain declaration of someone as having won the election and yet the figures that she has put in as the basis of a declaration those figures do not warrant a declaration that is the heart of this matter now my laws so my lord at the heart of that petition is this issue about the numbers that were acted upon by the first respondent first respondent puts forward an answer in which effectively first respondent says i am actually admitting that there were errors that's what first responded is saying first responders say i'm admitting there were errors but one they were inadvertent and they were corrected by a press release on the 10th of december 2020 we point out that the so-called correction itself contained mistaken figures we point that out very clearly and we further point out that those figures kept changing right up until the point where we have in the mechanism with respect cancer has been repeating the same things for the past 15 or 20 minutes it's the same thing he's been repeating my lords i don't know whether that's meant to throw me off the course of my argument but i i i think with respect this this is intolerable with respect because i was in the middle of a sentence actually and and you know it is not appropriate you know to to to make this kind of uh interjection yeah please say when you want to raise an objection it it has to be terminusly erased yeah so that yes you don't disrupt i thought i was actually raising italian [Music] i believe i was in the process of explaining that at the heart of our of the petitioner's petition before this court is a challenge to the declaration and it's not just a challenge about figures but it's a challenge related to the constitutional consequence arising from those figures and we are saying that after our we're saying that in effect the answer of the first respondent actually acknowledges that there were errors excuse me you are supposed to be speaking to paragraph 30 which is about the original declaration and the question from my brother on my right was that what there is nothing in your pleadings about the coalition process that my laws with respect the point that i was leading to if i may be allowed the point that i was leading to is that because the first respondent is the official responsible for those processes and the first respondent in the answer tabulates the so-called you know primary secondary tertiary quaternary stage and she relates to the correlation process the so the witness statement is also in response to the matters in the the the answer of of of the first respondent because the witness is addressing the case of the first respondent as well the witness has to respond to the case of the first responder and the case of the first responder is that she went through you know these four stages and you know so she is in effect explaining herself in terms of her conduct and we are saying that on that basis the witness is entitled because my laws if you were giving oral evidence if the witness were giving all evidence i would be entitled to lead him and say in the answer of the first respondent they have said they went through this and this what do you have to say to that melody is perfectly legitimate if i were leading him in the normal castle in of fact greatest respect my problem is this in their pleadings in the petition itself the petitioner did not raise any issue with ci127 and the petitioner does not seek to raise an issue about the lawfulness by paragraph 30 of the witness statement the witness is trying to raise issue with ci127 no my law the petitioner is raising an issue with the fact that the first respondent without good reason interposed that regional coalition center you see that was that that's where the provision in syria went that was the regulations that regulated or governed the elections in the conduct of the nation and if you did not raise any issue with it that the first respondent did violate cr127 and in your evidence you try to raise issue with how for the first time how uh there have been changes within now strong room to concentration that's what cia127 said that lesson should be conducted so and you will never raise any issue with it then in your evidence you try to raise issue indirectly my my lord's my laws with the greatest respect i believe that we are confusing an issue about whether we are seeking to challenge or raise an issue with ci127 and we are saying that that is not the objective but ci127 has to be executed and if the petitioner in making this interposition without good reason if the petitioner has as a result had problems in the collation which we seek to demonstrate with some samples that respectfully is an answer to their attempt to suggest that they did everything according to the processes that they outlined in their answer i don't my laws i don't think there's any doubting that in the answer if if my laws want me to refer to the specific passage of the answer it is from yourself that we don't want you to believe that one we we have oh my lord if i could in oral testimony leading him if i could ask him what do you have to say to paragraph five of the answer of the first responder which says they went in accordance with this and this and this and that would he not be able to provide the answer that is provided in paragraph 30 respectfully he would be i mean he absolutely would be because the the respondent the first responder has put in issue exactly those whole processes those processes come into the dispute in this election particularly in this election petition particularly because there are pleadings related to what is referred to as as you know vote padding or wrongful aggregation of votes and so on there are pleadings made in relation to that with exhibits provided and my lord i do want to insist and your lawsuits can can correct me if you were being led in the witness box in oral would i not be able to put the case of the first responder to him you could by the way you have framed the evidence in paragraph 30 who whom are you blaming carefully whom are you blaming whom am i blessed yes this evidence believing yeah blaming blame blame b my lord is it parliament or the first respondent or the structure that was my last chapter has nothing to do with this yeah because what he did has nothing to do with that because this is subsidiary legislation it was laid before parliament yes but i mean i was late before parliament for 21 years my lord anyway i believe that that is really not the essence of because i mean it totally is it's the essence so is parliament responsible for all subsidiary legislation [Music] please please please please please the testimony as far as i understand it you are blaming cia127 on here because you are saying that out of one two seven co127 he had bad motives and for that matter votes were aggregated and changed and all that but that was what the law required her to do no we're saying that the implementation of the law is what occasioned the problems and that and that this interposition without good reason was the opportunity for that really error-written implementation to take place that is what we're saying the problem is from the implementation of the law then in incense the first defendant the first respondent did violate the law why you've not indicated anywhere clearly you don't have to violate a law in order to implement it in a way that okay if you don't implement it correctly as provided in the law [Music] well my lords were saying that there was a lack of due process there was a lack of due process in the implementation uh the lack of due process the lack of due process is certainly an aspect of the implementation of the law it does not require us to challenge the law or to say that the law itself is the problem we're saying that in the implementation of a law or of a statute a piece of subsidiary legislation that she introduced without good reason we're saying that that was a part of the problem and we've given a sample of why that occasion the problems in paragraph 32 indeed aggregating the votes yes my lord's aggregating the total valid votes as shown by the 275 some issues released by the first respondent on his website the resultant figure is actually thirteen thousand two which is different from the ninth i mean my loss how can there be an objection to that passage of evidence that is a passage of evidence in which reference is being made to the website of the first respondent in order to address figures that she has solved or figures that her first respondent has put forward as a correction of other figures that she read which we all heard she's put forward those figures and here and and then subsequent to that there is published on the website there is publish on the website 275 constituencies and we do our arithmetic and we say that those figures actually result in this not in the figure of the proposer corrections how could that possibly not be you know i mean a piece of material evidence from from a witness in this election petition aggregating the total figures and and and and my loans this comes directly following paragraph 31 after the second the seventh december 2020 presidential election petitioners paragraph 31 of of the witness statement petitioners representatives in the strong room discovered that there were errors as a result of which they did not certify the summary of the results from some other regions they also noticed anomalies with some of the correlation sheets that may have been inputted into the results based on the observations the nbc calls a letter and so on and then indeed and it follows by talking about what she or what the first respondent put on the website which is in contradiction to what she purported to be the correct figures i mean my lords and what is more those figures are different from the they are not making any case against paragraph 31 yeah yeah it's 32. 32 is stating quite clearly that the figures that were published by the first respondent on their website when you put them together and this again is a matter relevant to the different figures that were being offered by way of correction on the 10th and later so i think this is a very material uh you know every piece of evidence especially my laws when it is acknowledged that the witness can have put to him the case of the first respondent the case of the first respondent is that an inadvertent error was made and it was corrected and the correction itself was subsequently corrected and we're saying that when you take what is on their own website is effectively in the nature of an admission by by them that they were wrong even in their purported corrupt correction this this is a clearly material piece of evidence and in paragraph 33 which is the last no i think the last but one again this is a statement of that point that the aggregated figures the aggregated figure from the total valued votes as shown by the 275 summary sheets released by first respondent on his website this figure is also different from the corrected figure of 10th december in the unsigned press release so paragraph 32 makes reference to the figures on the website and then paragraph 33 says that that was also different from the corrected figures and malone's with the greatest respect the the issue that is at stake in this petition is the conduct of the first respondent as the returning officer of the presidential election which which release which release relates to the conduct if we look which release the declare the relief that we have put down is a relief we have put down a number of reliefs now relief hey is that the chairperson was in breach of article 63 2. relief b a declaration are based on the data in the declaration made the dates are contained in the declaration made by mrs jean i require mesa chairperson of the first respondent and the returning officer for the presidential elections held on 77 no candidate satisfies the requirement of article 63. the third relief is a declaration that the purported declaration made on 9th december of the results of the presidential election by mrs gina duke mensah chair personal first responder and the returning officer for the presidential elections held on seven december is unconstitutional null and void and of no effect whatsoever now i mean we have set out in the preceding pleadings the basis of our claim of unconstitutionality we've set them out including the failures in respect of article 23 and the failures in respect of article 296 we sent them out and we're saying that you declaration that is not constitutional should be made and in paragraph 32 to 33 of the witness statement we are responding as we're entitled to two we're responding to the case that the first respondent is putting forward in which she puts forward certain numbers and we are relating those numbers to what she herself had or what the first respondent had put on their website and with the real estate that is clearly a relevant matter now my laws i i i i have to say that i mean these these um attempts to you know take out of our witness statement extremely material matters material matters that relate to the case that is being presented by the first respondent i mean i really matters that we we we consider uh you know really very very seriously because we we cannot see how anyone can objectively claim that these changing figures that we have been talking about as part of the lack of transparency and so on cannot be accepted as part of the witness's witness paragraph 37 this conduct of certain officials and maybe again my lord's paragraph 37 cannot be read in isolation of the previous paragraph because when he says disconduct the meaning of this conduct cannot be read without going back to 36. in 36 because 76 says exhibit f is a spreadsheet covering sample details from 26 constituencies showing vote padding by certain officials of first respondent in favor of second respondent when the votes second respondent obtained in all polling stations are shown on their respective pink sheets and these 26 consistencies are aggregated the resultant figure differs from the figure that was declared by first respondent for second respondent as captured on the summary sheets of the respective constituencies they show that more votes were added to those of second respondent than he had in fact obtained so this is a conduct that is then referred to at the beginning of 37 this conduct of certain officials of first respondent impacting the votes of first respondent is in fact indicative of a well-hatched and sustained pattern of manufacturing numbers unrelated to the actual votes collated at the various coalition centers with the sole aim of achieving the predetermined goal of the chairperson of the first respondent and the number of officials of first respondent to house second respondent unconstitutionally and unlawfully installed as president of ghana so this again is evidence that concludes paragraph 36 and paragraph 36 is not being objected to and it concludes paragraph 36 and indicates that this conduct that is referred to is in fact indicative of a well-hatched and sustained pattern of manufacturing numbers and by those whether indeed numbers were being manufactured or not is obviously a question of fact it's an issue that is to be resolved by the evidence of the parties and by the determination of which evidence is worthy of acceptance as truthful evidence and therefore we submit that none of these passages of evidence can be considered as passages that cannot be legitimately within the witness statement of our witness with the leave of your losses we wish to refer to order eleven may i have the lead or the court to reply i wish to refer to other 11 12 1 of ci 47 which reads and i quote subject to sub route 2 every pleading shall contain the necessary particulars of any claim defense or other matter pleaded including but without prejudice to the generality of the forgoing words a particulars of any misrepresentation fraud breach of trust willful default or undue influence on which the party pleading relies and b when a party pleads pl a party pleading alleges any condition of the mind of any person whether of any disorder or disability of mind or malice or any malice fraudulent intention or that condition of the mind and accept knowledge of particulars of fact on which the party relates realize my lord mr trump what you've just read is for the practice and procedure in the high courts yes yes and that's not what what is before us is not pleading properly so-called this is an election petition yes and it's regulated by rules and other things so we have made it clear that we are not applying the high cost of procedural rules in this case we are applying the evidence act to regulate the taking and admissibility of evidence in this case so allow us to regulate the procedure because it's an election petition because it appears it's something new so the lawyers keep on referring us to the high cost of procedural rules and other things but this is a peculiar jurisdiction which we are exercising now my understanding is that these rules may provide guidance to the court and it is part of our legal practice a party alleges matters relating to a state of mind like predetermined mind and prejudice and so he must give particulars in his petition the petitioner never give the particulars relating to the alleged predetermined intention the the bias and so on none of these matters particulars have been pleaded and we would urge based on that and all the other things we have submitted to this honorable court that the the pleadings the evidence the paragraphs in the evidence many of which are actually material facts which ought to have been pleaded should not be admitted we pray accordingly respectfully seek your permission because a point of law a new point of law has been raised because what is that very well all rise you're watching our coverage of this 2020 election petition the one of trial but what we've witnessed really uh doesn't look like that of a trial we'll take you through what's been happening uh so this hearing started at exactly 10 a.m first witness called john cena doing general secretary of the ndc but in his capacity as a witness for the petitioner there was an objection raised and that's what's been debated dealt with for more than two hours now a little over two hours mr kotompao lawyer for the second respondent nanado don quixote raised objections on three grounds about 10 paragraphs some of which he wants entirely struck out uh others he says the court should not entertain it uh so the three grounds uh based upon which he's raised these objections are one that some of the facts contained in the about 10 paragraphs um were not pleaded not uh pleaded and then also the second uh of grounds for the objection is the fact that they are pretty prejudicial and then the third one is that this can scandalous about 10 uh paragraphs in containing that witness statement that he's objected to and we've seen lawyer for john mahama mr chachachikata also making the arguments why those statements should be maintained so we've seen that for about two hours we've been watching and listening to that back and forth the electoral commission lawyer simply just agreed uh with the points raised by mr kutoampal so just agreeing with him but the fact that these ten paragraphs should be struck out is what the court has been dealing with uh all morning into the afternoon my name is mohammed sabadji kajang saying my colleague is here we will be talking to our correspondent jose vacca play who is on the ground but our election petition update is brought to you in association with petrosaur dbs roofing and co-op mixture we'll be back in a little bit still with us

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Id: 3EFUbaDQois

Length: 132min 30sec (7950 seconds)

Published: Fri Jan 29 2021