NANA VRS MAHAMA...GO AWAY! JUDGES BOOT NDC JOINDERS

 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 1^st (President Mahama) and 2^nd (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 1^st and 3^rd 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 1^st and 3^rd 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 (2^nd 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 1^st and 2^nd 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.