ENOS vs. ELECTORAL COMMISSION AND ANOTHER [1999-2000] 1 GLR 564

CASES REFERRED TO

(1) Morgan v Simpson [1975] QB 151; [1974] 3 WLR 517, [1974] 3 All ER 722, CA.

(2) Levers v Morris [1972] 1 QB 221; [1971] 3 WLR 909; [1971] 3 All ER 1300, DC.

(3) Kensington North Parliamentary Election, Re [1960] 2 All ER 150, Election Court.

(4) Gunn v Sharpe [1974] QB 808; [1974] 3 WLR 7, [1974] 2 All ER 1058, DC.

NATURE OF PROCEEDINGS

ELECTION PETITION by the candidate of the National Democratic Party for the Ajumako-Enyan-Essiam Constituency at the 1996

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Parliamentary Elections, who was declared the losser, against the Electoral Commission and the candidate of the New Patriotic Party, who was declared the winner, requesting the High Court, Cape Coast to order a recount by the returning officer of the votes obtained by the candidates at the elections. The facts are sufficiently set out in the ruling of the court.

COUNSEL

Harry Hayford for the petitioner.

Barton Odro for the first respondent.

Yaw Barimah for the second respondent.

JUDGMENT OF HEWARD-MILLS J.

During the 1996 parliamentary elections, results from the 108 stations of the Ajumako-Enyan-Essiam Constituency were being received by the returning officer, Q, at the constituency center based in Ajumako. Assembled there were representatives from each party. The retuning officer called out the figures for each party as received on each declaration sheet and the figures were added up by the representatives either manually or by the use of calculators.

This exercise started at about 6 pm. Sometime thereafter, at about 4.30 am, Q started feeling dizzy. He handed over the task of calling out the figures to his assistant, G. Before the end of the exercise the representative of the petitioner, the second witness for the petitioner, queried the figures. He reckoned that votes of the special voting conducted earlier on had not been included in the votes being counted. He left the center ostensibly to contact the petitioner and other representatives. Before his return, the exercise had been completed. Q sufficiently recovered, returned to the center, received the completed compilation from G, went out of the office and wrote on the notice board the results of the compilation declaring the New Patriotic Party candidate, the second respondent, as the winner.

Q and the other electoral officers and the remaining party representatives were on their way out of the center when they were confronted by the petitioner and his entourage, including the petitioner’s representative at the center who had gone out to call him. Q was informed specifically that there was an error in the calculation. Although Q denies it, both his assistants, namely O and G, have testified that they all went back to the office. The figures

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were recompiled and the error was confirmed. Q, according to the testimony, apologised and attributed the miscalculation to human error. The miscalculation had resulted in the New Patriotic Party candidate being declared the winner with 15,660 votes instead of the petitioner who had in fact secured 16,292 votes.

Q stated that with the jubilation going on outside by the New Patriotic Party followers, it would have been unwise, indeed dangerous to attempt to publicly correct the figures. It was agreed that they should all go to the regional office of the Electoral Commission at Cape Coast to inform their boss, Mr Yirenkyi, of the error and for the necessary correction to be made.

Mr Yirenkyi on being informed, first directed his investigations at the police commander who had attended the constituency center. When the commander assured Yirenkyi that nothing untoward had occurred at the center, Mr Yirenkyi decided not to do anything in the absence of the New Patriotic Party candidate and his representatives. Naturally, the New Patriotic Party candidate having been publicly declared a winner did not heed the invitation to participate in the investigation. Mr Yirenkyi testified that he was advised by the Electoral Commissioner to remit the uncorrected declaration to Accra for formal gazetting and publication in the national papers. The second respondent took up his seat in Parliament, and has enjoyed all the privileges attached thereto to date.

The original declaration forms still in the possession of the first respondent were produced during the trial and the computation of votes received was done in open court by both Q and his assistant G. The resultant figure proved conclusively that the votes of the petitioner were under declared by exactly 1,453 votes. During cross-examination, Mr Yirenkyi was asked the following questions prompting the answers stated:

“Q The police are for security, they don’t check the numbers.

A Yes, they are for security, they don’t check the figures.

Q I suggest to you the figures Afari Gyan requested you to declare were wrong (which) you knew well before you declared it?

A Yes, I accept it was wrong well before I declared it. There was a problem, it required transparency, if it was wrong it had to be rectified, but it was difficult to do it because one

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party was not co-operating to do it, that is why I brought in the police. If there was a mistake I did not do it.”

Elections are governed by the Representation of the People Law, 1992 (PNDCL 284) and the Public Elections Regulations, 1996 (CI 15). Section 20(1)(b) of PNDCL 284 states:

“20. (1) The election of a candidate shall be declared void on an election petition if the High Court is satisfied —. . .

(b) that there has been non-compliance with any provision of this Law or of regulations made under this Law and that it appears that the election was not conducted in accordance with the principles laid down by law and that such non-compliance affected the result of the election.”

As illustrated by the following English cases, whose electoral provisions are not too dissimilar to ours, it is not every breach of an electoral law or regulation that would lead to the invalidation of election results; the breach must not only be substantial and fundamental; but the third condition, ie that the breach “affected the result” must be read conjunctively with the other conditions and satisfied before such a declaration. In the case of Morgan v Simpson [1974] 3 WLR 517, 44 valid votes were erroneously omitted. The candidate who was declared the winner had a majority of eleven votes. Had the votes been included, his rival would have won by seven votes. The court in that case held that the omission had so affected the results that although the election itself had complied substantially with and was in accordance with the law, the appeal by the petitioner would be upheld and the election declared void. In contrast in Levers v Morris [1971] 3 All ER 1300 a request for a recount, ignored by the returning officer, and required by the law, was held to be an irregularity. But since it had not substantially affected the outcome, it could not nullify the election results. Similarly in Re Kensington North Parliamentary Election [1960] 2 All ER 150, the omission to place a mark against voters’ names in the registrar was considered to be a breach of the rules but not sufficient to invalidate the election since it had no effect on the results. In the leading case of Gunn v Sharpe

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[1974]2 All ER 1058, 98 ballot papers out of 189 were left out because the returning officer had not stamped them, the omission was attributed as in this case to a “human error.” If those votes had been included the losing candidate would have won. The court held that the omission disenfranchised half of the voters, it amounted to a substantial breach of the law and nullified the results.

Taking a cue from the last case, the question the court must first pose is whether there has been in this case a breach of the law. By section 11(1)(a) of PNDCL 284 the candidate who receives the largest number of votes shall be declared elected. Due to error on the part of the electoral officers the person who received the most votes was not declared the winner, thus a substantial breach of the law was committed.

On being challenged, the law imposed an obligation on Yirenkyi to investigate the results. The futile exercise of asking for the opinion of the police commander, did not and could not have resolved the problem. The original documents containing the error were in Yirenkyi’s possession and remained in his possession until produced during the trial. The detection of the error would have been a matter of course because the error as was proved in court was a simple mathematical miscalculation. The fact that it was just a mathematical error was then known to the officer of the first respondent because, as already found by the court Q, when challenged, recalculated the figures and admitted his human error. Mr Yirenkyi lacked the courage to correct the error of his own officials. Instead, he decided to seek the co-operation and consent of the second respondent who stood to gain by the error. It was unlikely that he would agree to participate in an exercise that would deprive him of the privileges he was to enjoy beyond his wildest dreams.

The error, the court finds cannot be attributed to human error. It resulted from a substantial breach of section 4(1)(b) of the CI 15. That section required the returning officer, Q, on receipt of the results from the polling station, to assemble the results and in the presence of the candidate or his representative and not more than two counting agents appointed by each candidate, give public notice of the total number of votes. The order to give public notice of the result carries the mandatory “shall.” The procedure adopted by Q and his deputy was to read out the figures. That procedure was seriously flawed and not in accordance with the law. An omission

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could not be easily detected since not all the counting agents were required to be present at this stage. It was to avoid this very crucial omission that occurred here, that the Law made it mandatory for public notice to be given of the total number of votes cast. That meant the few representatives there should have received individual copies of the declaration forms recorded by the presiding officers in accordance with section 37(1) of CI 15. That was what the representative of the petitioner had gone out of the center to seek in order to substantiate his challenge. The final declaration in his absence was also contrary to section 41(1)(c) of CI 15 which required the public declaration to be made in the presence of the candidate, his representative or at least two counting agents, none of whom were present.

Even more serious was, the breach of section 30 of PNDCL 284 which states:

“30. An election officer, (a) who makes in any record, return, or other document, which he is required to keep or make in pursuance of this Law or of regulations made under it, any entry which he knows or has reasonable cause to believe to be false, or does not believe to be true . . . commits an offence and is liable on conviction to a fine . . .”

When the order was given for the result to be sent to Accra for publication, all the electoral officers had blatantly committed offences under this section because they knew and they had reasonable cause to believe the results declared were false.

The evidence overwhelmingly proves that senior officers of the first respondent committed substantial breaches of the law during the compilation of the results and the final declaration although the election itself was conducted in accordance with the law. The court also finds that had these breaches not occurred, the petitioner would have been declared the winner. He has been caused incalculable harm by the commissions of the officers, which substantially affected the results. The relief granted by this court is as stated in section 19(b) of PNDCL 284 and that is, the court declares the petitioner and not the second respondent as duly elected. In compliance with [p.571] of [1999-2000] 1 GLR 564 section 22(1) of PNDCL 284. The court certifies its decision as declared above.

The registrar of this court is ordered forthwith to serve the commission with the above certification and the commission shall within 21 days on receipt of the certification, make the necessary arrangements and, publication to enable the petitioner to take his rightful palace[sic](1) in Parliament.

Costs of ¢1.5 million cedis is awarded to the petitioner jointly and severally against the respondents. DECISION Petition upheld.

Petitioner declared winner of election.

SA

Endnotes

1 (Popup – Footnote) [sic] same in original.