ALl AND OTHERS vs. GUMAH AND ANOTHER [2001-2002] 1 GLR 583

CASES REFERRED TO

(1) Addison v A/S Norway Cement Export Ltd [1973] 2 GLR 151, CA.

(2) Sarpong v University of Science and Technology [1999-2000] 1 GLR 585.

(3) R v Ansere (1958) 3 WALR 358.

ACTION by the plaintiffs to prevent the first defendant from presenting himself for election by the Bawku East District Assembly as the President’s nominee for the position of Bawku East District Chief Executive on the grounds that he failed to poll 50 per cent of the votes cast to approve him, to make him eligible for a second ballot. The facts are sufficiently set out in the ruling.

John A Ndebugre for the plaintiffs.

Akoto Ampaw for the first defendant.

E K Musah for the second defendant.

Quaye J. The four plaintiffs all hail from the Bawku East District in the Upper East Region of Ghana. The first and the second plaintiffs are friends of the third plaintiff while the third plaintiff

[p.586] of [2001-2002] 1 GLR 583 and the fourth plaintiff are both members of the Bawku East District Assembly. The third plaintiff in these proceedings testified as the spokesman for the plaintiffs. He is the assemblyman for the Widana Pulimakom electoral area; while the fourth plaintiff is the assemblyman for the Sarabogo-Deiga electoral area. The first defendant was nominated by the President of Ghana for approval by the Bawku East District Assembly as their chief executive. The second defendant is the statutory body responsible for conducting and supervising all public elections and referenda generally throughout Ghana.

The evidence led in this trial shows unambiguously that following the President’s nomination of the first defendant, a meeting was held by the Bawku East District Assembly on 17 May 2001. Among the items listed on the agenda for the said meeting was the “confirmation of His Excellency, the President’s nominee (Mr Abdul Rahaman Guma) for the post of district chief executive,” as evidenced by exhibit 2 herein—the letter of invitation to the meeting issued on 11 May 2001. At the said meeting, the members present cast their ballots on the issue and at the end thereof, the results were declared to be, 38 votes Yes, 38 votes No and One rejected ballot as per exhibit A. The reference to exhibit A is reference to the official declaration of results: Confirmation of appointment of district chief executive form of the Electoral Commission. On the face of exhibit A the total number of members of the Bawku East District Assembly was 78. Out of this number 77 members were said to have attended the meeting on 17 May 2001 and cast their votes as the total figure of votes counted and declared would seem to confirm. Accordingly, the first defendant was recorded on exhibit A to have obtained 49.3 percent of the total votes cast. In evidence the third plaintiff said the votes were by secret ballot. The one rejected ballot was a vote cast at the poll. It was however rejected because there was no mark or writing on it to show whether the member whose ballot it was, was in favour or against the approval of the first defendant for the post. After the results had been declared, the third plaintiff requested for, and was given a copy of the documented declaration of the results, exhibit A. The third plaintiff asserted that there was no tension, neither were there any disturbances within the Bawku East District

[p.587] of [2001-2002] 1 GLR 583 between 17 May 2001 and 27 May 2001. He was however aware of a petition that was forwarded to the Electoral Commission cautioning them on the declaration of the results of the ballot held on 17 May 2001. He maintained that the issues raised in the said petition, exhibit 5 were resolved before 27 May 2001.

In their statement of claim, the plaintiffs further raised the issue that the first defendant failed to poll 50 per cent of the first ballot held on 17 May 2001 and was in consequence disqualified from a second ballot. Lastly, it appears the plaintiffs are very much disquieted about what they complained of as the continued absence of a district chief executive for the Bawku East District which “is affecting the plaintiffs personally as well as collectively as citizens and inhabitants of the district.”

It was upon the above pleadings and evidence that the plaintiffs endorsed their writ with the following:

“(1) A declaration that the first defendant, having on 17 May 2001, failed to poll 50 per cent of the votes of the 77 members of the Bawku East District Assembly who were present and voted for the purpose of confirming him (the first defendant) as the Bawku East District Chief Executive, ceased to be the

President’s nominee for the position, to wit, Bawku East District Chief Executive.

(2) A declaration that by operation of law there is currently no nominee to be considered for approval as the Bawku East District Chief Executive.

(3) An order of perpetual injunction restraining the first defendant whether acting by himself or his agents from holding himself out or otherwise putting himself up as the President’s current nominee for the position of Bawku East District Chief Executive.

(4) An order of perpetual injunction restraining the second defendant whether acting by itself or its accredited agents from conducting any voting anywhere or anyhow or both for the purpose of considering approval of the first defendant as the Bawku East District Chief Executive.

(5) An order of the court directing the second defendant to formally report to the President to the effect that the first

[p.588] of [2001-2002] 1 GLR 583 defendant, on 17 May 2001, while being his (the President’s) nominee for the position of Bawku East District Chief Executive, failed to poll 50 per cent of the votes of members of the assembly who were present and voted and request the President to withdraw his (the first defendant’s) nomination and nominated another person for approval by the Bawku East District Assembly.”

It is the above case of the plaintiffs which the first defendant and the second defendant respectively or severally have to contest on the pain of judgment being given in favour of the plaintiffs, subject however to the existence of all other legal requirements, more particularly relating to the burden of proof, weight of evidence and credibility.

The first defendant personally testified in his own defence and further called three witnesses to support his version. According to the first defendant he attended the meeting of the Bawku East District Assembly on 17 May 2001 at which the ballot was cast by the members for the approval of his nomination by His Excellency the President of Ghana as district chief executive. At the end of the polls the regional electoral officer (the regional director of the Electoral Commission) for the Upper East Region announced to the entire house as was at that time constituted, that 38 members voted “Yes”; 38 members voted “No”; and there was One Unmarked ballot paper. After that the regional director of the Electoral Commission said that the President’s nominee had obtained 50 per cent of the votes and therefore the assembly would meet within ten days for a second ballot. Subsequent to the polls and the declaration of the results the first defendant received a copy of a petition challenging the results as declared (re exhibit 5). Apart from exhibit 5, the first defendant on different subsequent dates received copies of exhibits 6 and 7 as well as exhibits 8, the last being another petition.

I intend at this stage of the judgment to make merely introductory references to the documents received by the first defendant which were indeed tendered in evidence, and reserve the particulars thereof until I come to touch on the evidence of the second defendant. I find this approach more convenient, since by and

[p.589] of [2001-2002] 1 GLR 583 large, these exhibits were actually tendered by the second defendant. The first defendant found occasion to report the conduct of the regional director of the Electoral Commission which he found to be contradictory to the earlier declared percentage of votes that had been publicly announced on the day of the ballot to the Minister of Local Government.

A subsequent attempt to hold a meeting on 30 July 2001 by the assembly to consider the first defendant for a second ballot was frustrated when an action was filed in the High Court, Bolgatanga alleging, inter alia, that the first defendant was not qualified for a second ballot—exhibit 10. Upon the filing of the writ, an application was filed seeking an order of interim injunction, exhibit 11. The said action was however discontinued, exhibit 12. In view of the court action and the consequential application, the meeting that was slated for 30 July 2001 was still-born. A recent meeting which was scheduled for 9 May 2002 to consider a second ballot witnessed the filing of another writ in this court, which has occasioned this trial. It is the first defendant’s case that he did not know on 17 May 2001 at the voting that certain members of the assembly voted by proxy. He is of the view that the law does not allow for proxy votes to approve the President’s nominee for the position of district chief executive; hence this court should nullify the ballot held on 17 May 2001 at the Bawku East District Assembly to approve his nomination. He further contended that he polled not less than 50 per cent of the votes cast on 17 May 2001.

The first defendant witness for the first defendant was the district electoral officer for the Bawku East District as at 17 May 2001. He was present and actually officiated at the meeting of the assembly held on 17 May 2001 at which the members voted to approve the first defendant’s nomination as district chief executive. He personally issued ballot papers to the assembly members to cast their votes. His evidence was that out of 78 assembly members, four were absent at the said meeting on the said date and at the said time. He disputed the entry in exhibit A to the effect that 78 members of the Assembly were present and explained that in actual fact 74 members attended and voted, and that the total votes cast was 77 because three of them were proxy votes. He named the members who were absent and for whom proxy votes were cast to

[p.590] of [2001-2002] 1 GLR 583 be Louis Mbum, Gabiana Agbanwa and Mustapha Issahaq and stressed that it is only members of the assembly, whether elected or appointed, who were present at the meeting who were qualified and eligible in law to cast their votes. In this case the regional director of the Electoral Commission who was in charge of the ballot informed the assembly members at the start of the process that he would permit proxy votes. The witness gave evidence on the declaration of the results and stated that the regional director of the Electoral Commission announced the figures polled and further declared that the first defendant had polled 50 per cent of the votes having obtained 38 votes in his favour, 38 votes against him and one ballot paper had been invalidated because it was blank, not marked. Upon the above testimony, the first defendant witness contested the percentage of 49.3 declared for the first defendant and maintained that there was no announcement to that effect after the polls on 17 May 2001 at, and to, the assembly. During cross-examination by counsel for the plaintiffs, exhibits C and C1 showing the full list of members of the assembly were tendered. He particularised the proxy votes by saying that David Azia voted for Louis Mbum; Adam Ziblim voted for Gabiana Agbanwa, while Issa Mumuni voted for Mustapha Issahaq.

On his part the second defendant witness was the district co-ordinating director for the Bawku East District Assembly and also secretary thereof, confirmed from exhibit B, a photocopy of a true and accurate record of attendance at the meeting held on 17 May 2001, that 74 members of the assembly attended and physically cast their ballots. The rest of the page after the entry of the 74th name on exhibit B had been crossed to indicate that the list had ended. The third defendant witness was a member of the assembly and he testified to being the proxy for Gabiana Agbanwa upon consent of the regional director of the Electoral Commission for the Upper East Region.

Evidence on behalf of the second defendant was articulated through the chief director of the Electoral Commission stationed at the headquarters in Accra. In the main he chronicled the events. It is part of his schedule of duty to co-ordinate the activities of all the directors of the commission, including headquarters and the regions, the Upper East Region not excepted. The ballot at the

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Bawku East District Assembly held on 17 May 2001 to approve the first defendant’s nomination by the President as district chief executive was conducted by the regional director of the Electoral Commission, Mr Carl Rhule, since deceased, and the results were declared as stated previously, indicating the number of votes in favour, the number against, and the unmarked ballot. Later in the year Carl Rhule, deceased, communicated the results to the headquarters of the Electoral Commission in Accra through exhibits 3 and 3A (exhibit 3A is not different from exhibit A). The commission noted and took exception to the calculation of the percentage of votes obtained by the first defendant by Mr Carl Rhule and accordingly reacted by calling Mr Carl Rhule’s attention to the error of calculation, through exhibit 4. The commission specifically stated that 76 valid votes were cast and therefore the first defendant had obtained 50 per cent votes, not 49.3 percent as contained in exhibit A (and exhibit 3A). Even though exhibit 3A was dated 17 May 2001, the relevant documents were not forwarded to the headquarters until sometime during the first week of July 2001. Accordingly, exhibit 4 was written on 4 July 2001. In the view of the second defendant’s representative, the delay in communicating the records at an early date was probably due to certain petitions that Mr Carl Rhule had received and was working on.

There were two such petitions. The first one stood in the name of J M Awimbilla, who called for the Electoral Commission to refrain from conducting a second ballot for the confirmation of the first defendant as district chief executive. His petition, exhibit 5, which was dated 17 May 2001 sought to call attention that the first defendant in actual fact polled less than 50 percent of the votes cast on 17 May 2001, and was thus disqualified for a second ballot. The regional director of the Electoral Commission, Mr Carl Rhule’s initial reaction to exhibit 5 was contained in exhibit 6, a letter dated 21 May 2001 in which he stated inter alia that:

“(2) Regrettably, the mistake was detected after the meeting and this was rectified and the assembly notified accordingly.

(3) Arrangement was also made for the electoral director to

[p.592] of [2001-2002] 1 GLR 583 explain the inadvertent miscalculation to the house at the next immediate meeting.”

The letter of correction referred to in exhibit 6 was tendered as exhibit 7 dated 19 May 2001. The letter of correction alluded to the discovery of “an unfortunate mistake in the calculation of the percentage of votes obtained by Mr Abdul Rahman Guma . . .” and in consequence concluded that the first defendant had not qualified for a second ballot.

The second of the two petitions which was authored by one Mumuni Issah G was not dated. It called for the nullification of the entire proceedings in the Bawku East District Assembly on 17 May 2001 for non-compliance with the rules of procedure or regulations. It was received and stamped at the regional office of the Electoral Commission, Bolgatanga on 28 May 2001. By a letter dated 25 July 2001, the Electoral Commission was invited to attend an emergency meeting on 30 July 2001 in respect of an agenda which was to include the confirmation of the first defendant for the post of district chief executive.

On the day immediately following the date on which the invitation to the emergency meeting was written, one John Atikiba Abanbil of Bawku filed a writ in the High Court, exhibit 10, to contest the first defendant’s qualification for a second ballot. On 27 July 2001 the said plaintiff John Atikiba Abanbil filed a motion for interim injunction, exhibit 11, seeking an order to restrain the respondents, (same as the defendants herein) from conducting the second ballot aforesaid on the scheduled date, 30 July 2001. The action was however discontinued on 30 July 2001, exhibit 12. In effect, therefore, the meeting slated for that day was not held. Subsequently, another meeting was scheduled for 18 September 2001 to confirm the first defendant aforesaid, vide exhibits 13 and 13A. That meeting was again aborted by a letter from the district co-ordinating director, exhibit 14 dated on 17 September 2001. As if the assembly was resolved to see the end of this matter, another meeting was yet fixed for 9 May 2002 as per exhibit 15 of 29 April 2002. With matching resilience, the plaintiffs announced their presence by filing the writ herein against the latest attempt to test the assembly members’ approval of the first defendant. The second

[p.593] of [2001-2002] 1 GLR 583 defendants decry the proxy votes cast during the ballot held on 17 May 2001 which fact they allege came to their knowledge only when the third plaintiff made admission of same during cross-examination by counsel for the first defendant.

In the course of the trial, the first defendant successfully applied to amend his pleading. In consequence he filed a counterclaim for:

“(a) a declaration that the ballot conducted on 17 May 2001 by the Bawku East District Assembly on the President’s nominee for district chief executive of the Bawku East District Assembly is null, void and of no legal effect by reason of the fact that three assembly members, who were not present at the meeting, nonetheless voted by proxy contrary to law and their votes were counted by the second defendant;

(b) an order directed at the second defendant and the Bawku East District Assembly to conduct a fresh ballot on the President’s nominee, namely, the first defendant, for the office of district chief executive of the Bawku East District Assembly.”

The issues set down for trial are:

“(i) Whether the first defendant by law was enjoined on 17 May 2001 to poll 50 per cent of the votes of the 77 members of the assembly who were present and voted at the assembly’s meeting or only 50 per cent of valid votes cast thereat.

(ii) Whether or not an agent of the second defendant announced by document that the first defendant failed to poll 50 per cent of the required votes of the members of the assembly on 17 May 2001.

(iii) Whether 76 or 77 members of the Bawku East District Assembly voted on 17 May for the purpose of approving the first defendant for appointment as district chief executive.

(iv) Whether or not the first defendant polled 50 per cent of the votes of the members who were present and voted on 17 May 2001.

[p.594] of [2001-2002] 1 GLR 583

(v) Whether or not even if the first defendant polled 50 per cent of the votes of the members who were present and voted on 17 May 2001 the time for the approval of his nomination has elapsed.

(vi) Whether or not the plaintiffs are entitled to their claim.”

Subsequently, additional issues were added viz:

“(a) Whether or not by reason of the fact that three assembly members of the Bawku East Distict Assembly voted by proxy at the assembly meeting of 17 May 2001 on the ballot to approve the President’s nominee for district chief executive, the ballot so conducted that day is null, void and of no legal effect.

(b) Whether on the assumption that proxy voting is permitted at the ballot to approve the President’s nominee for district chief executive or on the assumption that the three proxy votes cast on 17 May 2001 do not vitiate the entire ballot cast that day, the first defendant polled 50 per cent or 49.3 percent of the ballot . . .”

Hearing of evidence in this action ended on 14 June 2002. On that day, counsel for the plaintiffs made an intimation of his intention to apply to recall or call witnesses. The said application was made and argued on 17 June 2002, it was dismissed and the matter was adjourned to 18 June 2002 for counsel to address the court. On the adjourned date, the plaintiff filed a motion for stay of proceedings pending the determination of an interlocutory appeal they had filed in the Court of Appeal against the refusal by this court to recall or call witnesses, as the court’s own witnesses, to give evidence on how they cast their proxy votes. This latter motion was argued on 20 June and dismissed on 27 June 2001 in a reasoned ruling. Even before the ruling could be read on 27 June 2001, the plaintiffs had filed another application for stay of proceedings in the application for stay of proceedings pending appeal, and for this court to grant leave to the plaintiffs to refer a question to the Supreme Court for determination as to whether it was unconstitutional for a voter to voluntarily decide to disclose his vote. After the two applications

[p.595] of [2001-2002] 1 GLR 583 had been disposed of on 27 June 2002, the court ordered written addresses to be filed not later than 5 July 2002. Upon this arrangement, the substantive suit was adjourned until 12 July 2002 for judgment to be read. As at the time I started to write this judgment yesterday, and even as at now, counsel for the plaintiffs has failed to submit a written address and has not applied for a variation orally. This court takes note of the conduct of counsel for the plaintiffs and infers from his conduct that he does not intend to address the court. He is accordingly deemed to have waived his right of address. I now proceed to the issues for determination.

The position of district chief executive was established by article 243 of the Constitution, 1992 of Ghana. Under the said article, the district chief executive shall first have been nominated by the President of the Republic and approved by not less than two-thirds majority of members of the assembly present and voting at the meeting called for his approval. The Local Government Act, 1993 (Act 462) virtually reproduces in section 20 thereof, the provision in article 243 of the Constitution, 1992. Both laws emphasise the fact that the district chief executive is appointed upon the votes only of members present and voting at the meeting summoned by the district assembly for that purpose. Upon powers derived from section 18(6) of Act 462 the Minister of Local Government brought what is now known as the “Model Standing Orders for District, Municipal and Metropolitan Assemblies” into being. These standing orders contain more elaborate provisions on the modalities or procedure for appointing a district chief executive. The relevant Orders are 15 and 16. Of particular relevance to the issue before this court in the herein action is Order 16 which provides, inter alia, as follows:

“16. (5) The Electoral Commission shall, within twenty-one days of the President notifying the secretary to the Assembly of his nomination, cause to be conducted a ballot on the President’s nominee.

(6) Voting shall be by secret ballot.

(7) In the event of the President’s nominee polling two-thirds or more of the votes of the members of the Assembly present and voting, the Electoral

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Commission shall notify the President of the Assembly’s approval within seven days of the approval.

(8) Where the President’s nominee polls fifty per cent or more of the votes cast but fails to poll the required two-thirds of the members present and voting, there shall be another ballot conducted on the nominee within ten days of the first ballot unless the President within the said period withdraws his nomination.

(9) Where the President’s nominee fails to win the required two-thirds at the second ballot, the President shall withdraw his nomination.

(10) Any nominee of the President who at anytime fails to poll fifty per cent of the votes of the members present and voting, shall be withdrawn by the President, who shall nominate another person for approval by the Assembly.”

From the foregoing, it can be inferred that the first defendant who was the President’s nominee for approval by the members of the Bawku East District Assembly, and in respect of whom the said assembly met and conducted a ballot on 17 May 2001, was enjoined to poll at least 50 per cent of the votes of the 77 members of the assembly who were present and cast their votes. Even though the relevant legislations talk of counting the votes generally, and indeed the word “valid” is not used in any of the legislations, yet natural justice and common sense would suggest that for any ballot to be accepted for counting, it must have, at least, on the face of it, passed as a valid vote. The Public Elections Law, 1996 (CI 15) which the parties accept as one of the applicable laws, clearly provides in section 38 that:

“38. (1) any ballot paper—. . .

(b) which is not marked by the voter so as to clearly identify the candidate for whom the vote was cast; or (c) which is not marked at all … shall … be void and not counted.”

[p.597] of [2001-2002] 1 GLR 583

While I am of the view that the provisions of CI 15 are more referable to presidential and parliamentary elections and therefore have a limited scope of application, I am nonetheless inclined to say that the principle underlined in section 38 thereof is a common sense principle and requires general application. I cannot envisage a situation where a ballot paper which cannot be interpreted to respond to or answer the issue at stake at any given time, will be accepted as valid. Even though, admittedly, the law does not specifically mention “valid votes”, I submit that at any election or poll, only valid votes cast are to be counted and used. In any organised society, the rules established or set in place for orderly conduct of affairs must be followed. Where for instance a voter puts into the ballot box a paper on which he has clearly indicated his choice of candidate or question, but it is found that the paper used by the particular voter is different from the ballot paper approved and issued for that occasion, his ballot will not be counted. It is not valid. It has the same effect as if he did not cast a vote or failed to indicate his choice.

Evidence led by the plaintiffs through the third plaintiff did not substantially establish that the second defendant acting by the regional director of the Electoral Commission announced by document that the first defendant failed to poll 50 per cent of the required votes of the members of the assembly on 17 May 2001. On the evidence as a whole, there is overwhelming support for a conclusion that at the end of the poll on 17 May 2001 the results declared officially, were not that first defendant had failed to poll 50 per cent of the votes. The document tendered by the plaintiffs was exhibit A. I submit forcefully that in order to ascertain what really transpired, exhibit A cannot be read in isolation. It has to be read in conjunction with other relevant pieces of evidence, mostly documentary which came up during the hearing. To better appreciate exhibit A, it must be read together with exhibits 1, 3A and 3B, 4 and 5, as well as viewed in the light of the evidence led by the first and third defendant witnesses. In the first place, it is irresistible to ask and seek to find answer to the question what prompted J M Awimbilla to write and forward a petition, exhibit 5, to the regional electoral officer and call attention that the first defendant failed to poll 50 per cent of the votes cast on 17 May 2001 and was

[p.598] of [2001-2002] 1 GLR 583 in consequence not qualified for a second ballot within ten days. Specifically he complied that: “By correct calculation Mr Abdul Rahaman Guma only succeeded in obtaining 49 or 49.4 per cent of the total votes cast and not the 50 per cent as announced by your office”. (The emphasis is mine.)

Exhibit 1, a letter in response to exhibit 5 was written by the regional director of the Electoral Commission to the petition of J M Awimbilla. It was dated 21 May 2001. Exhibit 1 expressed regret that a mistake that had been made earlier was not discovered at the meeting presumably held on 17 May 2001, but afterwards. Significantly, it was the petition filed by J M Awimbilla that has set in motion the whole process of confusion and uncertainty, that is most currently represented by the herein action. It is noteworthy that, clearly in the said petition was an admission that at the end of the polls on 17 May 2001 the results announced were, inter alia, that the first defendant had polled 50 per cent of the votes cast. Viewed this way exhibits A, 3 and 3A indicating that the first defendant obtained 49.3 per cent of the votes, were made in response to the petition filed by J M Awimbilla and therefore subsequent to the earlier declaration to the assembly members present and voting who attended on 17 May 2001. I therefore attach much credibility to the first and third defendant witnesses who stated in evidence and which was confirmed by J M Awimbilla in exhibit 5, that the regional director of the Electoral Commission actually declared at the poll that the first defendant had 50 per cent of the votes and therefore a second ballot had to be conducted within ten days, and I so hold.

The answer to the issue whether 76 or 77 members of the Bawku East District Assembly voted on 17 May for the purpose of approving the first defendant for appointment as district chief executive is that upon the record 77 votes were cast. This point as to the number of votes cast at the ballot is not seriously in dispute. Exhibit A shows there were 77 votes. The results declared were “Yes” 38; “No” 38 and there was one blank ballot which was rejected. The total votes cast was therefore 77.

The above finding brings me to one of the very basic issues for determination, that is whether or not the first defendant polled 50 per cent of the votes. By exhibit 4, the chairman of the Electoral

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Commission sought to overrule the regional director’s purported correction of what he as well as Mr J M Awimbilla perceived to be a wrong calculation of the percentage votes obtained by the first defendant after the ballot of 17 May 2001. In doing this the chairman of the Electoral Commission justified his calculation on 76 votes since according to him the seventy-seventh vote was not valid. The plaintiffs however contend forcefully that the percentage ought to be calculated upon the actual total of votes cast. In order to resolve the issue of the percentage of votes, this court intends to consider the legal effect of a blank or unmarked ballot paper, as happened in this instance. The offending ballot paper can be identified or classified under any of several well-known terms. It is either a neutral vote, a zero figure in mathematics, a nought or naught, or a blank. Somewhere in his written submissions to the court, counsel for the second defendant invited the court to take the literal meaning of words if those words are unambiguous. The Chambers Dictionary provides the meanings of the words above stated. At page 168 thereof the word “blank” is defined to mean:

“(of writing paper, etc) not written on; (of a questionnaire, etc) printed with empty spaces for information to be inserted, or with these spaces still unfilled; empty; featureless; expres sionless; nonplussed; sheer; unproductive . . .”

At page 1078, the word “naught” is said to mean “a nought, wickedness; evil; good for nothing; worthless . . .” The word “nought” is defined at page 1108 to mean “not anything, nothing, the figure 0 . . .” The definition of “neutral” is at page 1089. It means “indifferent; taking no part on either side; not siding with either party; relating to neither party; not involved in a war or dispute; . . . of no decided character . . .” Last of the lot is the word “zero” which is defined at page 1948. It simply means “nothing.”

Further to the above dictionary meanings, I feel called upon to consider the probable legal principles applicable to the determination of the legal effect of a blank or unmarked ballot. Notwithstanding the clear and therefore unambiguous law as contained in section 38 of CI 15 that a ballot paper which is not marked by the voter so as to clearly identify the candidate for whom the vote was cast or a ballot paper which was not marked at all shall be void and

[p.600] of [2001-2002] 1 GLR 583 not counted, the law requires that where something is capable of both a positive and a negative interpretation, a court of law is enjoined to adopt an interpretation that would uphold the positive. The maxim is interpretatio tails in ambiguis simper fienda est ut evitetur inconveniens et absurdum: which means—in cases of ambiguity, such an interpretation should always be made that what is inconvenient and absurd may be avoided. Thus in the case of Addison v A/S Norway Cement Export Ltd [1973] 2 GLR 151 at 162, CA Anin JA (as he then was) stated, inter alia, that:

“The law is quite settled that if the terms of an agreement are so vague or indefinite that it cannot be ascertained with reasonable certainty what is the intention of the parties, there is no contract enforceable at all . . . Admittedly, in appropriate cases, the court attempts a fair and broad construction of business transactions and agreements, duly concluded applying such maxims as verba ita sunt intelliganda ut res magis valeat quam pereat (words are to be understood as that the subject matter may be rather preserved than destroyed). . .”

The same principle was applied by Ollennu J (as he then was) in R v Ansere (1958) 3 WALR 385 at 387 when he stated that:

“Where facts are capable of both innocent and criminal interpretation of the conduct of an accused person, a court is bound to take the innocent interpretation unless there is some definite evidence or circumstances which exclude that interpretation.”

Legally the blank vote is nothing. If it were capable of being assessed then any assessment to be made would go equally in both ways. Assuming therefore that a value or figure were placed on the blank vote, half of that value would go for the first defendant and the other half would go in his disfavour. Whichever way the blank vote was looked at, it neither adds nor detracts from the votes declared. In effect, therefore, even though on 17 May 2001 77 ballots were counted the votes obtained by the first defendant were equal to those against him. Simply put therefore, whether the seventy-seventh ballot was counted or rejected, its value did not

[p.601] of [2001-2002] 1 GLR 583 contradict the 50 per cent votes obtained. This court would therefore place on record its admiration for the wisdom of the drafters of CI 15, more particularly section 38 thereof in coming to a conclusion that would avoid all confusion and ambiguity by directing that the blank ballot be not counted at all, its value is nothing, a zero. Accordingly, I find as a fact that the first defendant polled 50 per cent of the votes of the members who were present and voted on 17 May 2001. Exhibit 4 is upheld and exhibits A, 3A and 7 are condemned to the extent where they declared that the first defendant polled less than 50 per cent.

The evidence of the second defendant substantially and over-whelmingly goes to establish beyond doubt that any delay in holding a second ballot for the approval of the first defendant, beyond the stipulated ten days as required by law cannot be laid at the door steps of the first defendant. Obviously, acting upon the strength of exhibit 4 the presiding member or the co-ordinating director of the Bawku East District Assembly made several attempts as evidenced by exhibits 9, 13A and 15 all of which respectively gave notice of dates on which meetings had been scheduled for the purpose of holding a second ballot for the fiist defendant. Importantly, however, the second defendant in answer to a question during cross-examination by counsel for the plaintiffs said that ordinarily, a meeting ought to be held within the time frame specified but that where there were hindrances the period of limitation might not apply. The facts herein demonstrate importantly that each time an attempt was made to hold a meeting for a second ballot for the first defendant at the assembly, the effort was thwarted. The petition evidenced in exhibit 5 by J M Awimbilla forestalled the holding of a meeting within ten days after 17 May 2001 for a second ballot in respect of the first defendant. After that, exhibit 8, a petition filed by one Mumuni Issah G, then a writ standing in the name of John Atikiba Abanbil was filed on 26 July 2001. It was followed with an application for interim injunction filed by John Atikiba Abanbil on 27 July 2001, exhibit 11. These were used to block intended meetings at respective dates. Another meeting which was scheduled for 18 September 2001 was called off by the district co-ordinating director as per exhibit 4. The very fact that we are in this court in this action bears

[p.602] of [2001-2002] 1 GLR 583 eloquent testimony of frustrations in the way of holding a meeting to conduct a second ballot for the confirmation of the first defendant as the district chief executive of the Bawku East District Assembly. It is trite law that the principles of equity and natural justice would not permit a person to take advantage of his own wrong, more especially where another person has suffered detriment as a result of the wrong committed. The evidence before me is fraught with calculated attempts by persons of Bawku East descent, the current plaintiffs not being exception, to apply means other than those provided by law to cause great embarrassment to the first defendant. I am at my wit’s end to appreciate why the plaintiffs and others with them would not go to lobby the assembly members to vote against the first defendant, and would rather want to take the law into their own hands.

The courts have no power to declare the first defendant approved. It is only the members of the Bawku East District Assembly who have that prerogative of franchise. I will pronounce with emphasis that in so far as there is any petition or action pending, the ten days limitation period would not run against the first defendant. The clock would begin to tick from the time the last of the petitions, court actions or what the second defendant would describe as hindrances, are disposed of. I should in any case point out that it does not lie in the hands of the first defendant to organise a meeting of the assembly, nor to conduct a ballot. Those functions are reserved statutorily to the presiding member, the district co-ordinating director cum-secretary of the district assembly and the Electoral Commission: see section 17(5) of Act 462 and also Order 3(3) of the Model Standing Orders for District, Municipal and Metropolitan Assemblies. Evidence amply shows that since 17 May 2001 even though there is no tension or disturbances or both in the Bawku East District, yet the whole skyline over the district has been, and still, is decorated in a wide but brilliant array of petitions and court actions as to make it difficult, if not altogether impossible, to invoke the ten days limitation period. Under the prevailing circumstances, I hold that the ten days limitation period cannot be invoked in the instance of the first defendant. He is still eligible and qualified for a second ballot, within ten days after this case has been determined provided

[p.603] of [2001-2002] 1 GLR 583 there are no fresh writs, petitions and the like.

I now turn to the proxy votes. The third plaintiff admitted under cross-examination by counsel for the first defendant that proxy votes were cast during the ballot held at the Bawku East District Assembly to approve the first defendant’s nomination by the President as district chief executive. Both the first defendant witness who is a district electoral officer and the third defendant witness, a member of the assembly confirmed by their evidence that there were proxy votes. The first defendant witness who officiated at the poll said that the regional director of the Electoral Commission informed the members of the assembly then present at the commencement of the balloting that he would allow proxy voting. In the result, three members of the assembly who were present and had cast their ballots, subsequently voted as proxy for three other members who were absent. Indeed, the third defendant witness was one of the three members present who cast ballots for the absentees. The fact having been established beyond doubt that proxy votes were allowed and were in fact cast, it is my duty now to examine the existing applicable legislation to ascertain the effect of such process.

The Constitution of Ghana, 1992 by article 49(1) thereof provides that votes at public election or referendum shall be by secret ballot. Article 51 of the Constitution, 1992 however grants the Electoral Commission the power to make regulations for the effective performance of its functions under the Constitution by constitutional instrument, including provision for voting by proxy. In 1992 the Representation of the People Law, 1992 (PNDCL 284) was passed. Section 15 thereof provides that: “The Commission may by legislative instrument make regulations generally for the conduct of elections including provisions for voting by proxy.” See also section 47 thereof where the commission may by legislative instrument make regulations providing for, inter alia, procedure for voting. The “Model Standing Orders for District, Municipal and Metropolitan Assemblies”, state categorically in Order 16(6) that voting to approve the President’s nominee as district chief executive shall be by secret ballot. It is further provided that the ballot shall be cast only by members present and voting. I will digress briefly to underscore the requirement of secret ballot. As a

[p.604] of [2001-2002] 1 GLR 583 matter of fact the sanctity of the requirement of secrecy was put beyond doubt by section 24 of (PNDCL 284). It states: “A person who has voted at an election shall not be required to state for whom he has voted in any proceedings questioning the election.” I will not comment on this any further. It speaks for itself, and it is quite instructive. It would appear that CI 15 was made in response to article 51 of the Constitution, 1992. Section 23 of CI 15 provides the procedure for voting by proxy at public elections. It is tempting to say that voting to approve a nominee for the post of district chief executive may not be cognisable under CI 15 but this is merely a point of debate. In this action, counsel have variously referred to CI 15 and concluded that its provisions are applicable. This fact notwithstanding, the evidence before me does not suggest that the regional director of the Electoral Commission acted under the provisions of section 23 of CI 15. He merely generally informed the members that he would allow proxy voting. Besides the above, the relevant legislation previously referred to herein strictly outlaws voting by proxy. Was the regional director competent to allow proxy votes under the circumstances.

In the High Court, Kumasi case of Sarpong v University of Science and Technology [1999-2000] 1 GLR 585, the registrar of the university who also served as secretary to the university council, during his official instructions to a search committee appointed by the university council to conduct interview for a candidate for appointment as Vice-Chancellor of the university, told the search committee that in the event of a tie in their ranking of the candidates in order of merit, the chairman of the search committee could exercise a casting vote. After I had examined the propriety of that concession and its legal effect, I stated at 623-624 as follows:

“No less satisfactory was the resort to the casting vote to resolve the tie. As a matter of fact Act 80 grants to the chairman of the council both an original and a casting vote. The effect of this is that the practice is known to the council and to the university. In this whole exercise of setting up the search committee of 1998, including their instructions, supply of materials they would need, the modalities and criteria, just to mention a few, the registrar was the contact

[p.605] of [2001-2002] 1 GLR 583 point between the committee and the council. With the registrar not being a stranger to the procedure actually practised as well as those provided by law, which include the availability to the chairman of the council of the right to use a casting vote, would it be too far-fetched, or can the registrar be justifiably faulted for asking the committee to use the casting vote if and where circumstances demanded? In my candid view, the answer is bound to be negative. I would hold that the casting vote in the circumstances which confronted the committee was not arbitrary, capricious, nor actuated by luck, but rather well informed by the facts arising from the totality of the documents, proceedings at the interview and evidence that went before the committee. I am fortified in this decision by the reasoning of Cave J in Nell v Longbottom (supra) at 771 where the learned Judge stated that:

‘When as a result of the chairman’s giving his vote, the numbers on either side become exactly equal, the common law appears to have provided no way out of the difficulty. The institution of a second or casting vote, as it is called, is the creature of the statute law introduced for the purpose of avoiding the deadlock which would otherwise ensure.’

In the instant case, there is statutory provision under Act 80 which is available to the chairman of the council. It may be argued that the chairman of the committee was not envisaged, but this objection is a debatable issue. Acting upon the instructions of the chairman and members of the council the registrar of the university who is also secretary to the council told the committee what it can do. The committee, strictly speaking, cannot go outside the statutes and regulations under which the university conducts its business. In this case, it acted in accordance with what it considered legitimate instructions.”

The above reference is not made upon any claim or supposition of setting a legal principle or authority. It is merely produced to offer a means of measunng or classifying the conduct of the

[p.606] of [2001-2002] 1 GLR 583 regional director of the Electoral Commission when he permitted proxy voting in the Bawku East District Assembly on 17 May 2001 to approve the first defendant as district chief executive. I will say without hesitation that the two scenarios are distinguishable. I hold that the regional director lacked authority to issue instructions contrary to the clear and unambiguous statutory provisions. For the avoidance of doubt, the relevant statutes are article 243(1) of the Constitution, 1992; section 20(1) of (Act 462) and Order 16, rr 7, 8 and 10 of the Model Standing Orders for District, Municipal and Metropolitan Assemblies. One condition that is common to the said provisions is the recurring phrase “present and voting at the meeting.” It only shows that only members of the assembly who are present at the meeting can vote.

I find it difficult to follow and uphold the view that PNDCL 284 or a constitutional instrument such as CI 15 are not applicable to the ballot to approve the President’s nominee for the post of district chief executive merely on the ground that the former is a law passed under a military dictatorship and the latter is merely a constitutional instrument. Indeed, the Constitution, 1992 by article 51 thereof empowers the Electoral Commission by means of constitutional instruments to make regulations for effective performance of its functions under the Constitution, 1992 or any other law, and in particular, for the registration of voters, the conduct of public elections and referenda, including provision for voting by proxy. Unless there is evidence to the contrary, it is supposed that CI 15 was passed in accordance with the Constitution, 1992 and does not offend any provisions thereof. It was passed in exercise of a right conferred under the said Constitution, 1992.

What I find offensive in the conduct of the poll on 17 May 2001 is the non-invocation of the provisions under regulation 23 of CI 15. For instance, the evidence does not disclose that any application was made by any member of the assembly to vote by proxy. Under regulation 23 of CI 15, such application ought to be made “not less than fourteen days before the poll.” In the instant case, the second defendant was notified of the poll presumably by a summons, exhibit 2, dated 11 May 2001 which also fixed the meeting at which the ballot was to be cast on 17 May 2001.

[p.607] of [2001-2002] 1 GLR 583

Assuming regulation 23 of CI 15 was to be invoked, any member seeking to vote through a proxy would have had to submit an application to the second defendant not later than 3 May 2001. It appears that the third defendant witness only got to know he would proxy vote for Gabiana Gbanwa on the very day of the poll. But it is instructive that by far the only conclusion that can be drawn from the relevant legislation on the appointment of a district chief executive, is based on the recurrent requirement of votes of members present at the meeting that is specifically called for the purpose. The inference therefore is that it is not intended that all members of the assembly must be present. What is clearly intended is that for a member to be eligible to exercise his franchise in respect of approving the President’s nominee, he must mandatorily be physically present at the meeting. When this view is appreciated, then clearly the conclusion can be drawn that no proxy voting is intended; hence the provisions of CI 15, reg 23 would not apply. Where a particular system of casting votes is not provided for or is, so to speak, outlawed, as seems to be the issue of proxy voting in this case, then the consent to so vote and the fact that it was done, renders the process not merely irregular, but wholly null and void, and without any misgivings, iso hold. It is only the three votes that are void, but the fact that proxy voting was allowed and indeed took place, vitiates the whole ballot.

In view of the above, the action of the plaintiffs fails and is hereby dismissed accordingly, I fail to grant reliefs (1), (2), (3), (4) and (5) endorsed on the writ. I uphold the counterclaim of the first defendant and declare that the ballot held at the Bawku East District Assembly on 17 May 2001 for the confirmation of the first defendant is void and of no legal effect. In consequence, the first defendant is still eligible for a first ballot, provided the President would retain his nomination.

Action dismissed.

EKD-O