I am not aware of any judicial University that has awarded or conferred a graduate or doctoral degree on the pink sheet. Some of the Nigerian authorities filed by the petitioners are in point. Thus in INEC v. Oshiomele (2008) CLR 11 (a) S.C the Independent National Electoral Commission of Nigeria (NEC) was subpoenaed by the petitioners and did produce inter alia “forms, voters registers, ballot papers and records of counting and sorting of the ballot papers” in the challenged election, and the Supreme Court held that such documents largely established their case in addition to oral evidence.
Again in I.N.E.C v Ray (2004) 14 NWLR (Pt. 892) the Court of Appeal (Enugu Judicial Division) held as per the headnote (4) as follows:
“ELECTION PETITION –ALLEGATION OF HOLDING OF ELECTION:
How allegation that election took place in a particular ward or Constituency can be proved.
“…a party who alleges that election took place in a particular ward or Constituency is required, in order to prove that allegation; …to call at least one person who voted at any of the polling units in the two wards whose registration card would show the stamp of the presiding officer and the date confirming that he had voted at the election. In the alternative, the presiding officer or any other official of INEC who participated in the conduct of the election, could give evidence to that effect and support that evidence by the production of the register of voters and other official documents of INEC prepared, signed, and dated by him, showing that election had taken place in all or some of the units of the wards concerned. Per OGUNBIYI, J. CA”
Indeed in DTA v Prime Minister (1996) 3 LRC 83 High Court, Namibia O‟Linn J presiding, vigorously dissented from the validity of a law prohibiting the opening or inspection of sealed electoral material by any person except by order of court in criminal proceedings, saying as stated in the Headnote that it was an absurdity that a complainant be given the right to come to court only to be deprived of the procedural right of discovery and inspection once there.
It appears that the petitioners rather belatedly, towards the end of the case, realised the need for the adduction in evidence of such vital documents like the voters registers, collation sheets, etc and tried to do so, sometimes with the indulgence of this court, through cross-examination of Dr. Kwadwo Afari Gyan, Chairman of the Electoral Commission and also through unsuccessful applications for leave to serve on him notices to produce such documents.
It is felt, and the petitioners so submit, that the pink sheets do operate as estoppel as to the facts therein contained and therefore, inter alia, extrinsic evidence is inadmissible. The shortest answer to this is that the constitution being the supreme law of the land doctrines of estoppels do not apply to constitutional litigation, see Tuffuor v Attorney-General (1980) GLR 637 C.A (sitting as the Supreme Court), New Patriotic Party v Attorney-General (1993-94) GLR I. do not think that it makes a difference that such estoppels are contained in statutes, since such statutes cannot derogate from the supremacy of the constitution. In any case estoppels do not apply where the parties, as here, possessed common knowledge of the real facts involved such that no party can mislead the other as to them, see Ghana Rubber Products Ltd v. Criterion Company Ltd (1982-83) GLR 56 C.A, Odonkor v Amartei (1992) 1 GLR 577 S.C and in Re Fianko Akotuah (Decd); Fianko v Djan (2007-2008) SC GLR 170. I also need not waste time demonstrating that extrinsic evidence, were estoppels applicable here, is admissible under the exceptions thereto, see Dua v
Afriyie (1971) 1 GLR 260 C.A and Koranteng II v Klu (1993-94) 1 GLR 280 SC.
In the circumstances I do not think that the petitioners have established their allegations of overvoting and voting without biometric verification, except to the limited extent admitted by the Electoral Commission’s chairman, which cannot impact much on the declared results.
POLLING AGENTS
It was sought to devalue the status of the polling agents to that of mere observers. That is certainly unacceptable. If they were such passive attendants at an election it is inconceivable that the constitution would have considered their signatures to the results sheet significant enough to merit express constitutional requirement. Before exiting the constitution to seek for other signs of their powers one is met squarely with article 297 (c) as follows:
“297. Implied power
x x x
(c) where a power is conferred on a person or authority to do or enforce the doing of an act or a thing, all such powers shall be deemed to be also given as necessary to enable that person or authority to do or enforce the doing of the act or thing;”
Also under the Public Elections Regulations, 2012 (C.I. 75) Regulation s.19, as far as relevant is as follows:
“Polling agents
x x x
(2) A candidate for presidential election may appoint one polling agent in every polling station nationwide.
(3) An appointment under subregulations (1) and (2) is for the purpose of detecting impersonation and multiple voting and certifying that
the poll was conducted in accordance with the laws and regulations governing the conduct of elections.
(4) A presiding officer shall give a polling agent the necessary access to enable the polling agent to observe election proceedings at a polling station.
x x x
(6) The returning officer shall set a date on which the polling agents shall appear before the returning officer to swear an oath to the effect that the polling agent shall abide by the laws and regulations governing the conduct of elections.
x x x
(8) The polling agent shall present the duplicate copy of the letter of appointment to the presiding officer of the polling station to which the agent is assigned on the day of the poll.
(9) Despite subregulation (5) a candidate may change an agent under special circumstances and a new agent appointed by the candidate shall swear an oath before the presiding officer in charge of the polling station where that agent is assigned.” (e.s)
In Jayantha Adikari Egodawele v Commissioner of Elections (2002) 3 LRC 1, the Sri Lanka Supreme Court per Fernando J commenting extensively on the important role of polling agents in an electoral system which is very similar to that of Ghana, said at 19 thus:
“Would potential voters not lose confidence in the ability of the law enforcement authorities to protect them against unlawful acts and/ or to duly investigate them if they did occur? Ballot-stuffing and driving out polling agents go hand-in-hand with violence or the threat of violence – which, in turn, will have a deterrent effect on electors in the vicinity as well as on those still in their homes. Impersonators will not have an easy task if there are polling agents present who might challenge them (and demand declarations under s.41). Obviously, polling agents are not chased away because they are disliked, but because they hinder impersonation. Further, the practice of seizing polling cards from electors must not be forgotten. That is seldom an end in itself, because it does not prevent those electors from voting. However, if those electors
can somehow be deterred from voting, and if there are no polling agents likely to object, a seized polling card will be a passport to impersonation. Thus driving away polling agents is a classic symptom of graver and more widespread electoral malpractices, ranging from the intimidation of electors and the seizure of polling cards to large-scale impersonation.” (e.s)
Continuing at 21 he said:
“Polling agents have a special role to play in a free, equal and secret poll, and this court emphasised the need to ensure their security shortly before the disputed poll. Their right to be present at the polling station is expressly recognised by s.33, in the same breath as the right of election staff, the police and candidates. Their duties commence from the time the empty ballot box is sealed; and, inter alia, they have the right to challenge suspected impersonators. An election, ultimately, is determined by the number of ballots cast. It is the polling agents who play a leading part in ensuring that only those entitled to vote do cast ballots. Chasing away polling agents makes a poll cease to be equal.”(e.s)
Indeed in Mcwhirter v Platten (1969)1 All ER 172 serious discrepancies in the declared results of the Enfield borough local elections were taken up by an election agent called Harris and this led to the pursuit of criminal process. At 173 Lord Parker CJ said:
“On 9th May 1968 local elections took place, amongst other places, in the borough of Enfield. There are thirty wards, each returning two candidates, and in one of those wards, West Ward with which we are concerned in the present case, there is no doubt that the elected candidates were Conservatives. There were in addition two Labour candidates, two Liberal candidates and two Independent candidates, the two Independents being Mrs. Bradbury, who is one other appellants, and her husband, Mr. Bradbury. The count in this ward took place in the presence of the election agents of the various candidates. The matter with which we are concerned came to light as the result of something that was said to Mr. Harris, who was the electing agent of the two Independent candidates. The counting officer, or his deputy, told Mr. Harris at the end of the count that broadly speaking, subject to checking, the Conservative candidates had 2,600 votes each, the Labour candidates 170, and the two Liberal candidates had 140 votes. So far as Mr. Harris‟s candidates, Mr. And Mrs. Bradbury, were concerned, he was told that subject to minor adjustment, Mr. Bradbury had got 525 and
Mrs. Bradbury 519; in other words, they came second to the Conservatives and above the Labour and Liberals.
To Mr. Harris‟s amazement, when the formal announcement was made of the result, he found that the two Labour candidates had been given votes which exceeded those in respect of Mr. And Mrs. Bradbury, in other words the Labour candidates had come second. As a result, the returning officer, the respondent, looked into the matter, and he came across a very curious state of affairs- a shocking state of affairs really- as the result of which he felt constrained to make an announcement in the press, and on 24th May the following announcement was made by the respondent:
“Following publication of the detailed results of the recent Borough Elections my attention has been drawn to apparent arithmetical discrepancies in the figures for [not merely West Ward, but Craig park and High field Words] I have discussed these matters with the Agents of the candidates primarily concerned and such enquiries as I have been able to make, have regard to the provisions of Electoral Law designed to preserve the secrecy of the ballot, lead me to the following conclusions: (i) There has been no case in which there has been a failure to include in the Count any votes cast, but the total number of votes appears to have been miscalculated, with the result that in two cases candidates as a whole appear to have been credited with more votes than were actually cast. (ii) In the third case candidates as a whole appear to have been credited with fewer votes than the total votes cast but in such proportions as not to affect their relative positions (iii) In no case does it seem that these matters affect the result of any election. …”” (e.s)
This shows that misrepresentations of electoral results do not necessarily invalidate them when the real ascertainable truth can establish the contrary. So let it be with our pink sheets herein.
Continuing at 175 he said:
“Let me say at once that there is no question whatever of an election petition. The Conservatives were elected by a very large majority, and there is no question of Mrs. Bradbury or anybody else bringing an election petition. Therefore the sole ground advanced, and it is advanced by Mr. McWhirter and Mrs. Bradbury is the first one, namely that the
order is required for the purpose of instituting a prosecution for an offence in relation to ballot papers. Both Mr. McWhirter and Mrs. Bradbury have sworn that is the object, in their affidavits.” (e.s)
The certification of the results by the polling agents without any complaint at the polling station or by evidence before this court shows that certain recordings on the pink sheets should not readily be taken as detracting from the soundness of the results declared but rather point to the direction of administrative errors which at the worst, as demonstrated supra, can be corrected by the defaulting officials.
By analogy, though a company law case, I adopt substantially and mutatis mutandis the reasoning in Marx v Estates and General Investments Ltd. (1976) I WLR 380 as set out in the Headnote as follows:
“A merger agreement between C. Ltd. and the defendant company was entered into, whereby the defendant company should acquire the share of the former in return for approximately 5.500,000 new ordinary stock units in the defendant company. The agreement was conditional on a resolution being passed by a general meeting of the defendant company approving the merger and increasing the authorised capital. A meeting was convened for June 12, 1975, for that purpose but, as a substantial number of shareholders objected to the merger, the meeting was adjourned. The dissentients distributed unstamped forms of proxy providing for the appointment of a proxy vote “at the adjourned extraordinary general meeting of the company … or any further adjournment or adjournments thereof or at any new extraordinary general meeting of the company during 1975” dealing with the matter. The meeting was reconvened for July 16 and was adjourned to July 30. At that meeting the resolution approving the merger was defeated on a show of hands and a poll was demanded. The chairman accepted the votes tendered, appointed scruitineers and adjourned the meeting until the result of the poll could be declared. Article 66 of the company’s articles provided that no objection should be raised as to the admissibility of any vote except at the meeting at which it was tendered and “every vote not disallowed at such meeting shall be valid for all purposes.
On August 4, when the count was almost concluded, objections were raised as to the validity of the proxy forms on the ground that as they related to more than one meeting they should have been stamped 50p. In accordance with the Stamp Act 1891. The validity of the votes cast by
the proxies appointed on the unstamped forms determined whether the resolution had been passed. The opinion of the Controller of Stamps was obtained that the forms of proxy were not chargeable.
On a motion, treated as the trial of the action, by the dissentient shareholders to restrain the defendant company from treating the resolution as having been passed:
Held, giving judgment for the plaintiffs, that since the proxy forms were capable of being used to vote not only at adjournments of the meeting of June 12 but at any new extraordinary general meeting in 1975, even though they might have been intended only for use at one meeting, they were liable to a 50p. stamp and the chairman would have been entitled to reject them at any time at or before the July 30 meeting, but he was entitled to accept the votes of a proxy because the unstamped proxy votes were not void and were valid authorities capable of being stamped; and, accordingly, since the company had accepted them without objection at the meeting the votes cast by the proxies were valid (post, pp. 386H – 387a. 388A-B, C-D, 391D-E); and that in all the circumstances the dissentient shareholders were entitled to their costs on a common fund basis under R.S.C., Ord. 62 r. 28 93) (post, pp. 392D-F, H-393A).
Held, further, that by virtue of article 66 the objection taken several days after the meeting at which the votes were tendered was made too late to invalidate them (post, pp. 389H-390A) . . .(1) Adjudication by the Controller of Stamps does not prejudice rights asserted and relied upon prior to adjudication (post, pp. 387H-388A).
Prudential Mutual Assurance Investment and Loan Association v Curzon (1852) 8 Exch. 97 considered.
(2) There is much to commend an article in a company’s articles of association to the effect that an objection to the admissibility of a vote should only be raised at the meeting at which it is tendered (post, p. 390A-E)”
At 390 Brightman J said:
“If an objection is raised to the form of proxy, there may be an explanation if only it can be heard. What is more sensible than to provide that an objection must be voiced at the meeting where the vote is to be cast so that there is at least the opportunity for it to be answered?”
In The King v Robert Llewelyn Thomas (1933) 2 K.B 489 C.C.A where a verdict in a criminal trial, at which the evidence was given partly in English and partly in Welsh, was delivered in the sight and hearing of all the jury without protest, the Court of Criminal Appeal refused to admit affidavits by two of the jurors showing that they did not understand the English language sufficiently well to follow the proceedings.
The signatures of the polling agents to the declaration of results therefore have high constitutional and statutory effect and authority, which cannot be discounted.
The Dimensions of an election Petition
An election petition is multidimensional. There are several legitimate interests at stake which cannot be ignored. In Ghana this is fully acknowledged. The fundamentality of the individual’s right to vote and the need to protect the same have been stressed by this court in several cases – Tehn Addy v Electoral Commission [1996-97] SC GLR 589 and Ahumah-Ocansey v Electoral Commission, Centre for Human Rights & Civil Liberties (CHURCIL) v Attorney General & Electoral Commission (Consolidated) [2010] SCGLR 575.
Indeed in Azam v Secretary of State for the Home Department (1974) AC 18 at 75 HL Lord Salmon (dissenting) said that the right to vote is so fundamental that if a person entitled to vote in the House of Lords managed to enter the chamber without a pass as required his vote should not be invalidated.
Beyond the individual’s right to vote is the collective interest of the constituency and indeed of the entire country in protecting the franchise, see Luguterah v Interim Electoral Commissioner (1971) 1 GLR 109. In Danso-
Acheampong v Attorney-General & Abodakpi (2009) SCGLR 353 this court in upholding the validity of s. 10 of the Representation of the People Act, 1992 (PNDCL 284) and rules 41(1) (e) and (3) of the Supreme Court rules 1996 (C 116) suspending the effect of a disqualification pending the determination of an appeal from a conviction, this court, ably speaking through Dr. Date-Bah JSC at 360 said: “what is at stake is not just the member of Parliament’s private interest. There is the public interest which requires that the constituents‟ choice should not be defeated by the error of a lower court (e.s)”
Indeed in Cyprus voting is compulsory. In Pingoura v The Republic (1989) LRC 201 CA the Cyprus Court of Appeal held that compulsory voting was designed to reinforce the functioning of a democracy, an important constitutional objective.
In Langer v Australia (1996) 3 LRC 113 the High Court of Australia upheld the validity of a law, backed by criminal sanctions, which requires a voter to mark his ballot paper by showing his order of preference for all candidates, on the ground that it was meant to further or enhance the democratic process.
In Peters v Attorney-General (2002) 3 LRC 32 C.A., Trinidad and Tobago at 101 Sharma J.A Said:
“An election petition is not a matter in which the only persons interested are candidates who strive against each other in elections. The public are substantially interested in it and that it is an essential part of the democratic process. It is not a lis between two persons, but a proceeding in which the constituency itself is the principal party interested. The characteristics of an election petition are fundamentally different from civil proceedings. Hence for example there was the need for special rules concerning, for example, the notice and publication, which is outside the courts ordinary jurisdiction and procedures.
An election petition is quite unlike any of the initiating proceedings in the High Court. It is not a writ, or originating summons, nor is it in any way
close to say a petition in bankruptcy or a petition for divorce which respectively have their own rules of procedure. In a sense an election petition can be described as sui generis.”
In Jayantha Adokari Egodawole v Commissioner of Elections (2002) 3 LRC 1 the Supreme Court of Sri Lanka at 26 stated per Fernando J thus:
“The citizen’s right to vote includes the right to freely choose his representatives, through a genuine election which guarantees the free expression of the will of the electors: not just his own. Therefore not only is a citizen entitled himself to vote at a free, equal and secret poll, but he also has a right to a genuine election guaranteeing the free expression of the will of the entire electorate to which he belongs. Thus if a citizen desires that candidate X should be his representative, and if he is allowed to vote for X but other like-minded citizens are prevented from voting for X, then his right to the free expression of the will of the electors has been denied. If 51% of the electors wish to vote for X, but 10% are prevented from voting- in consequence of which X is defeated – that is a denial of the rights not only of the 10%, but of the other 41% as well. Indeed, in such a situation the 41% may legitimately complain that they might as well have not voted. To that extent, the freedom of expression, of like-minded voters, when exercised through the electoral process is a „collective‟ one, although they may not be members of any group or association.” (e.s)
These judicial pronouncements as to the national dimension of a public election have been justified in this case. About 360 registered voters applied in initio litis to join in this petition in order to protect their vote. Failing in that move several of them have filed affidavits to protect their vote. Others took to lawful demonstrations calling for their votes to count. They are entitled under the constitution so to do. They are also particularly entitled under article 23 of the constitution to relief from administrative errors of public officials that affect their rights. It provides thus: