Nana Akufo-Addo leaves the court premises yesterday
Posted on: www.dailyguideghana.com
By William Yaw Owusu
Friday March 15, 2013.
The dream of more than 350 National Democratic
Congress (NDC) supporters to join the landmark election petition were shattered
yesterday when the Supreme Court threw them out.
The nine-member panel chaired by Justice William
Atuguba unanimously ruled that the NDC supporters were not allowed in the
petition in which three leading opposition New Patriotic Party (NPP) members are
challenging the declaration of John Dramani Mahama as President by the
Electoral Commission (EC) in the December 7&8, 2012 general election.
Light
At the End of the Tunnel
The ruling thus, sets the stage for trial of the
much-awaited petition which has also attracted international attention except
that the parties in the case have been given 7 days to sort out the memorandum
of issues for the trial to proceed.
In the event of the parties not agreeing on the
issues to be set for trial within 7 days, the court said they should
communicate the disagreement to the court registry for a date to be fixed to
thrash the issues out.
As it is, the trial has been adjourned sine die
(indefinitely) and reactivating it would depend on the agreement reached
between the parties on how the trial should proceed; nonetheless, they have 7
days to agree.
The joinder applications by the NDC supporters were
seen by many legal experts as a ploy to delay the court process.
NDC
Dismissed
Delivering the ruling after a heated argument on
whether or not to allow the NDC supporters to join, the court said that “the
joinder is neither necessary nor convenient.”
The court held that the applicants could not wait
for the process to reach an advanced stage before deciding to join the petition
and also added that they could not prove they are an interested or necessary
party to the petition.
Asiedu-Nketiah explains issues to the media
The panel held that special rules designed by the
court were there to ensure expeditious trial and the applicants could not come
in to cause a delay.
The ‘prime movers’ of the petition according to the
court, were the political parties who are a necessary parties to the process
and added that it was that reason that the NDC was allowed to join the case.
It further said it was clear that the concerns of
the applicants could be addressed if they chose to enter the case as witnesses
without necessarily joining the petition and added that the 1st
(President Mahama) and 2nd (NDC) respondents could protect the interest of all the
applicants who fear their ballots could be announced.
Applicants
Missing in Court
When the application was filed, Stephen Ahor who
announced himself as representing the NDC supporters told the court that the
security arrangements made it impossible for his clients to enter the courtroom
after the panel wanted to know where the applicants were.
Justice Jones Dotse asked counsel why he failed to
attach his practicing number to the application and asked him not to repeat
that mistake again.
The court then halted proceedings for counsel to
present some of the applicants to the court but after combing the court’s
premises, counsel came back to say that they were nowhere to be found.
“I was told that because they were coming in a
group, the police did not allow them to enter the yard,” he told the court.
Justice Atuguba then said “I do not think we can
wait for them the whole day,” and also asked that once all the applications
were similar there was the need to merge them to ensure expeditious trail which
counsel obliged.
Counsel
for Applicants
At this juncture, Kwabla Dogbe Senanu took the floor
and said he was part of the legal team that is going to move the applications
and added that he was taking over from Mr. Ahor, Eric Atieku and Genevive
Ocansey.
He told the court that at the last count, the
applicants were about 350 individuals and once the court had decided to merge
the applications, he was representing all of them to which Justice Atuguba said
“you can represent all those listed for court today.”
NDC Chairman enters the courtroom
Application
for Joinder Moved
Phillip Addison, lead counsel for the petitioners
then told the court that his clients had no objection to the merger of all the
application while Samuel Kodzo who is representing the NDC also said he had no
objection and Mr. Senanu subsequently proceeded to move the motion.
He said the applicants who are from different
polling stations were seeking to join the petition in groups and that they were
bringing the applications pursuant to Rule 45 (4) of C.I. 16.
Justice Annin-Yeboah
then cut in to say that for the purposes of the petition, the rule
quoted by counsel had been amended but Mr. Senanu said Part 8 of C.I. 16 was
amended to C.I. 74.
He told the court that the applicants were taking
advantage of the court’s decision that allowed the NDC to join the petition.
He said the applicants were a necessary and
interested party because it is the votes of voters that give political office
holders legitimacy.
“Once the petitioners are seeking to annul their
votes they have a constitutional right to protect their interests in this
petition.”
As Mr. Senanu tried to play to the gallery, Justice
Jones Dotse told counsel to ‘convince’ the court on how the applicants are a
‘necessary party’ to the petition and stopped him from lecturing them on what
the court deemed as ‘political science lectures.”
Justice Sulley Gbadegbe who was lively throughout
the proceeding with his thought-provoking questions asked counsel what reliefs
the petitioners sought from the applicants.
Mr. Senanu said if the results of the 11,916 polling
stations were to be annulled it was going to affect the interests of the
applicants who cast their ballots.
Justice Gbadegbe then asked again: “You keep using
the terms necessary, intervener, proper etc without addressing us on why we
should allow the applicants to join. This is a constitutional matter. Are you
saying almost every registered Ghanaian voter should come and line up here to
join?”
Mr. Senanu replied that the applicants’ polling
stations were mentioned and they needed to protect their interests.
He denied that they were seeking to delay the
process with the applications saying “that is why we have even agreed to merge
all of them.”
Counsel said Rule 70 of C.I.74 which addresses
consolidation of petition would not easily open the floodgates for more people
to join the process as argued by the petition.
NPP Chairman leaves the courtroom
He said what the applicants had done was a better
way of getting their votes to be counted instead of “going to the streets to
organize symposium to get their votes counted.”
Justice Vida Akoto Bamfo asked counsel if the issue
he had raised formed part of the application but he (counsel) said “it is not
there.”
Justice Dotse then alerted counsel that some of the
applications were thumb printed but there were no attestation and asked him not
to repeat that again.
Addison’s
Opposition
Opposing the application, Mr. Addison said the
applications had filed with synchronized addresses among others except the
names of the deponents.
He said all that the applicants were seeking to do
was to delay the hearing of the petition.
He said that every Ghanaian including those who did
not vote were interested in the outcome of the petition and the applicants
cannot hold that because they voted, they should be allowed to join the
petition.
Some of the NPP lawyers in court
He said the nature of the petition puts the
applicants squarely in the camp of the respondents especially the 1st
and 3rd adding “the interests they are seeking to protect are the
interest that every Ghana has in this petition.”
Mr. Addison said the votes the petitioners seek to
annul “cut across the board so why would they say those votes are their vote?”
He said the vote the petitioners are seeking to
annul are votes that even include those who voted for the petitioners.
He said it was wrong for the applicants to hold that
they have the same right as the petitioners saying “if surely their rights are
equal, then they cannot be coming to court at this time.”
The petitioners according to their counsel had 21
days to file the petition and they did it within time but the applicants waited
for the process to advance before coming to court to say that they must be
allowed to join because they have the same rights as the petitioners.
When Justice Dotse reminded counsel that he could
not advance his argument on the question of time, Mr Addison replied that from
the date the petition was filed the applicants were put on notice.
“There should be equality of treatment before the
law. Their interests are fully represented by the 1st and 3rd
respondent. If they are allowed and they bring evidence it will be repetitive
and repressive.”
He said the non-joinder of the applicants will not
“disable the court to fully determine the petition. The application is intended
to make a mockery of the petition.”
EC
Agrees With NDC Supporters
James Quarshie-Idun, counsel for the EC (2nd
respondent) when asked about his position said the EC was not opposed to the applications
by the NDC supporters to join the petition.
He said under the rules for election there were
three ‘indispensable’ components and that included the commission, candidates
and registered voters whose interests needed to be protected.
NDC
Backs Its Supporters
The NDC led by Samuel Kodzo also supported the
applicants saying “we believe there is merit in the applications.”
NDC supporters who wanted to join the petition
Before the judges retired to their chamber to
decide, Justice Doste again asked the bar to be decorous in their language in
order not to inflame passions outside the court.
After rejecting the NDC supporters, the court began
hearing the application for directions filed by the petitioners but the NDC
raised preliminary objection.
NDC
Raises Objection
Mr. Kodzo told the court that what the petitioners
were seeking to do was “alien to the rules.”
Just as he attempted to cite C.I. 16, Rule 69,
Justice Gbadegbe reminded him that the situation was in the case of an appeal
and asked him to relate his argument’s to the instant petition.
Mr. Kodzo then said Rule 69 (c) of C.I. 16 was clear
on how an election petition should be directed and there was no need for the
petitioners to file the instant application asking for directions saying “after
close of pleadings all the parties appear for directions.”
Justice Gbadegbe then asked if application for
direction and memorandum of issues do not achieve the same purpose but Mr.
Kodzo replied “These are irregularities. They are in breach of express
provisions of the court rules.”
He said “what they did is alien. It does not pertain
in all the High Court divisions. We urge the court to strike out the
particulars as filed.”
Addison
Replies NDC
Mr. Addison told the court that it had necessitated
the filing the application because there is no rule governing that stage of the
proceedings and what petitioners did “was only to move the petition forward.”
“What matters is the substance and not the form,” he
said and added that when the NDC was being admitted to join the petition,
Justice Dotse has made it clear that the court was going to adopt appropriate
case management practices in the trial and that was exactly what the
petitioners were looking forward to.
NPP lawyer speaks to journalists
Mr. Kodzo came in again to say that contrary to what
the petitioners said, Rule 69 (c) spells out the way forward saying “it is
provided for. We will come to court and the court will give us direction.”
At this juncture, it was clear that both President
Mahama and the EC had all filed their issues for directions except the NDC.
NDC’s
Objection Overruled
The court then in a unanimous decision overruled the
NDC’s preliminary objection saying counsel could not convince the court with
his argument.
Justice Atuguba said that the court will treat
petitioner’s application for direction as memorandum of issues.
Mr. Kodzo then asked the court to allow the NDC to
file the application for direction and the court allowed them to file it
without specifying the time.
Way
Forward
This development provoked reaction from the
petitioners counsel while the respondent’s counsel especially Tony Lithur
representing President Mahama, said they were going to reject most of the
proposals put forward by the petitioners for the trial.
He specifically mentioned the use of audio visuals,
evidence from potential witnesses, exchange of documents 7 clear days before
the trial, mode among others as some of the ‘substantial’ issues that they
would raise objection.
Nana Akufo-Addo's car
Justice Gbadegbe then asked all the parties to “put
your heads together to narrow down the issues to be set for trial.”
Justice Doste also said that document available show
that issues of the 1st and 2nd respondents are “similar
in content and style” and it was not difficult for all the parties to sit and
narrow the issues down.
The court then adjourned the case sine die for the
parties to come to a consensus as to the issues they are setting for trial
failure of which would have to be determined by the judges.
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