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Nana Akufo-Addo leaves the court yesterday
Posted on : www.dailyguideghana.com
By William Yaw Owusu
Wednesday January 23, 2013.
The Supreme Court yesterday in 6 – 3 majority
decision ruled that the ruling National Democratic Congress (NDC) can join to
be part of the petition challenging the declaration of John Dramani Mahama as
President.
The nine-member panel Chaired by Justice William
Atuguba therefore directed the NDC, which had filed the motion for joinder, to
file their answer to the petition by New Patriotic Party (NPP) presidential
candidate and two others within seven days of receipt of the petitioner’s process.
The case was subsequently adjourned until January
29 for hearing, to enable the NDC enter the fray as the 3rd
respondent to the Nana Addo Dankwa Akufo-Addo, Dr. Mahamudu Bawumia and Jake
Otanka Obetsebi-Lamptey petition.
Per the rules of the court, the decision of this
landmark case is final and not subject to any form of review and the NDC is
officially part of the case as respondent.
Initially, the case J8/31/2013 had Nana Akufo-Addo,
his running mate Dr. Bawumia and NPP Chairman Mr. Obetsebi-Lamptey were the petitioner
with President Mahama and Electoral Commission as respondents but as it is now
the NDC becomes the 3rd respondent.
Justices Atuguba, Sophia O. Adinyira, Rose C.
Owusu, Jones Victor Dotse, Sule N. Gbadegbe and Vida Akoto-Bamfo ruled that the
applicant (NDC) should join the case as a necessary party while Julius Ansah, Anin-Yeboah
and Paul Baffoe-Bonnie said the NDC failed to demonstrate that it was a
necessary party and should not be allowed to join the case.
When the case was called, Justice Atuguba told
anxious audience that Justice Akoto Bamfo was to read the ‘lead opinion’.
Each judge then took turns to explain his/her
position on the NDC’s joinder, with some giving reasons for their decision while
others deferred their reason.
All the judges gave different interpretations to
the rationale behind joinder applications and went ahead to apply the law as it
relates to the NDC application.
Majority
View
Justice Akoto Bamfo said that even though counsel
for the petitioners “mounted an attack” on rules under which the NDC came to
court to invoke the court’s jurisdiction, the applicant was protected under the
1992 Constitution.
She said that in as much as the challenge by the
petitioners is a constitutional matter, the NDC had also properly invoked the
court’s jurisdiction to join the case.
‘A
necessary party’
Turning her attention to who is a ‘necessary
party’, the judge said that the averments of the applicant is obvious that they
nominated and sponsored the 1st respondent (President Mahama) as
their candidate in the December 7, 2012 general elections and once the
respondent’s election is being challenged, the NDC becomes a necessary party.
She said if the NDC is not allowed to join and the
court makes it decision, it could affect their interest as a party that
nominated and sponsored the 1st respondent to contest the election.
The judge said it is obvious that political
parties are integral part of the democratic dispensation and political process
as espoused by Article 55 of the 1992 Constitution.
The judge said that it is a ‘notorious fact’ that
the petitioners (Nana, and Bawumia) and the 1st respondent
(President Mahama) were nominated by their respective political parties and
they campaigned and sold their ideas and programmes to the electorate saying
“Under this system of governance political parties play a major role.”
She said it will not be just for the NDC who
sponsored a candidate (Mahama) and whose
election is being challenged to be asked to sit on the fence and added that
should the court come to the conclusion that the election should be re-run, the
same candidates will go back to their respective parties to restart campaigns.
Who
is a citizen?
The judge interpreted that an applicant may not be
a citizen but could file to join such a case, adding that a political party
whose rights are enshrined in the constitution, who sponsored a candidate must
not be denied its constitutional rights.
Justice Akoto Bamfo said that it was obvious that
the 3rd petitioner (Jake) is in court to protect the interest of his
party and the NDC are doing same.
Atuguba
Concurs
Concurring, Justice Atuguba said the rules for
joinder should not be restricted and added the C.I. 16 should be looked at in
its broader sense.
He said that “Rule 45 (4) under which the
applicant comes falls under the court’s original jurisdiction,” adding
“applicant rightly brought application under C.I. 16.”
The panel chairman said there is a danger of
“leaving statutes disjointedly and must be read inter alia under Article 55 of
the Constitution”, if the applicant’s case is to be appreciated properly.
He said the rule are clear that political parties
are enjoined to sponsor candidates for office apart from District Assemblies
and others adding “the office of president is within the confines where a
political party is can sponsor a candidate.”
He mentioned that Article 297 (c) talks about the
stakes of parties in government while Articles 76 and 78 talks about how state
institutions should treat political parties and in all of them, the NDC’s
rights must be respected.
He also said that Articles 55 (2) and (10) gives
every citizen the right to join any political party of choice or participate in
any political activity adding that a political party has constitutional rights
to field candidates to contest any public office including the office of the
President.
He said the petitioners described and identified
themselves as coming from a particular party and that the applicant is also
seeking to give practical effect to its involvement in the political process.
He said that the purpose for joinder is to ensure
that any issue regarding the case is ‘effectively and completely’ determined so
that the court’s decision will be binding on all the parties.
He said the NDC has a ‘very real interest’ as
sponsor of the 1st respondent (Mahama) and they (NDC) would better
assist the court to resolve the matter adding, “the applicant’s joinder cannot
be superfluous.”
Justice Atuguba however, made it clear that the
court could not be intimidated by the respondent’s threats to bring 4,800
witnesses because the court has specific rules to cater for that.
Adinyira
Concurs
Justice Adinyira who concurred with the majority
also said that “it is just and convenient that all the parties should be bound
by the decision of the court.”
Owusu
Concurs
Justice Owusu, also a member of the majority said
the grant of such application is discretional but after assessing the strength
of the affidavit she concurred with the majority that the NDC should be made to
join the case.
“The applicant is seeking to join the petition on
its own intervention so it is called an intervener.”
“It is apparent in the face of the affidavit of
the applicant and the petitioners and I find that the applicant has some
interest. They are directly to be affected.”
Dotse
Concurs
Justice Dotse, another member of the majority said
he concurred with his colleagues that the NDC
should be allowed to join to the petition because “a lot of injustice
will be done to the applicant and the development of the law in general if they
are not allowed to be joined.”
He also supported Justice Atuguba’s assertion that
the court will put appropriate measures in place to ensure that the case is not
unduly delayed.
Gbadegbe
Concurs
Justice Gbadegbe said he agreed with the
majority’s view but said “I reserve my conclusion.”
Minority
Position
Then came the three justices who dissented
starting with Justice Baffoe-Bonnie.
Baffoe-Bonnie
Dissents
He said, “I am still not convinced that the applicant
(NDC) are a necessary party to be joined in this petition. I find the
application unmeritorious.”
“The the
applicant’s (NDC) averments clearly shows that they are only an interested
party and no more. They have not shown that they are a necessary party.”
He said that the court was looking at the
petitioner as one whose presence would help to effectually and completely deal
with the case or one whose exclusion will not serve the interest of justice.
He said the 1st respondent’s (President
Mahama) has a higher stake than the NDC because it is the President’s election
which is being challenged and the NDC has no business being part of the case.
Justice Baffoe-Bonnie said that the petitioners
have not sought any reliefs against the NDC for them to join the case.
He said he looked carefully at the political
parties law and others and still did not see how any other statute “makes the
NDC a necessary party.”
“I have looked at the law. It is a straight fight
between human persons and not between political parties,” he said.
He said that if by the rules, a losing party
cannot seek to join the petition then he did not see the reason why the
majority could decide that the NDC can join in the name of ‘pluralism and
multipartism’ adding “it is obvious discrimination.”
“The applicant has only demonstrated that they
have interest in the outcome but not a necessary party who without them there
cannot be effectual and complete disposal of the petition.”
Minority
stance on who is a citizen
Justice Baffoe-Bonnie said that statutory order
makes it clear that political parties cannot file petition but can be done by
human persons adding “surely if you don’t have the capacity to sue you must
lack the capacity to sue.”
He said in this matter, the law restricts the word
‘include’ when it comes to those who have the capacity to sue or challenge an
election petition saying “it excludes the NDC who no claim has been made
against.”
He said the 1st respondent has been
added to the petition because the law specifically mentions him and added that
if the President resigns from the NDC today, he will continue to be President
but that cannot apply in the case of an MP and that is the reason why the NDC
cannot takeover seek to join the case when President Mahama is the one directly
affected.
Annin-Yeboah
Dissents
Justice Annin-Yeboah in his support for the
minority’s decision said that “I don’t think that any of the factual deposition
to the applicant’s affidavit is not denying that the 1st respondent
stood on the applicant’s ticket.”
He said that there are three channels through
which an applicant can be joined in a case. It is either by the court’s order,
by a request from the parties or by an application by an interested party who
becomes an intervener according to the court’s rules and clearly the NDC had
applied to join as an intervener saying “this is joinder of intervener.”
He said that in this case however, a non-joinder
of an intervener will not affect the case in anyway and added that “the
applicant failed to justify to the court that they are a necessary party.”
He said there was no attempt made by the NDC to
define a ‘necessary party’ as the majority is portraying them saying “the
applicant has not demonstrated that without its presence the court cannot
effectively dispose off the case.”
“The rule does not provide any rule for an
intervener,” and went ahead to state that in the Ekwam vrs Pianim case it was
the court that ordered the NPP to join because the reliefs sought directly
affected the NPP.
Ansah
Dissents
Justice Ansah also supported the minority’s
position. He said “I agree that this application must be dismissed.”
He said the petition is properly constituted
before the court and the action can be completed without the presence of the
applicant.
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