Monday, January 28, 2013
COURT GIVES NDC NOD - To join NPP petition against presidential results
January 23, 2013 (Lead story) THE Supreme Court on January 22, 2013 gave the National Democratic Congress (NDC) the green light to join a petition challenging the declaration of President John Mahama as the winner of the December 2012 presidential poll. By a 6-3 majority decision, the court was of the view that “it will be in the interest of justice” to allow the NDC to join the petition, since it would be directly affected by the outcome of the case. According to the court, the fortunes of the NDC and those of the President were “tied together” and it was, therefore, important for the NDC to be allowed to join the petition to assist the court to effectively and completely determine the matter. “It will not be proper to say a party cannot be called to join when its candidate is being challenged. The NDC played a pivotal role in the nomination and election of President Mahama and it will certainly be in the interest of justice that the NDC be allowed to join the petition,” Mrs Justice Vida Akoto-Bamfo stated in the court’s lead opinion. “The purpose of a joinder is to allow all matters to be handled once and for all,” she said, and accordingly described as “without basis” the attack on the rule under which the NDC applied for the joinder by the lead counsel for the petitioners. The six justices of the highest court of the land who gave the NDC the nod to join the petition as a third respondent were Mr Justice William Atuguba, the presiding judge, Mrs Justice Sophia Adinyira, Ms Justice Rose Owusu, Mr Justice Jones Dotse, Mr Justice N. S. Gbadegbe and Mrs Justice Vida Akoto-Bamfo. Those who did not find it “necessary and convincing” for the NDC to join the petition were Mr Justice Julius Ansah, Mr Justice Anin Yeboah and Mr Justice Paul Baffoe-Bonnie. After a two-hour ruling, the court also ordered that the title of the petition be amended to include the NDC as the third respondent in the case. The parties in the case have seven days within which to serve the necessary papers on each other, as well as file the necessary documents, before the court convenes on Tuesday, January 29, 2013 to hear a motion from the Electoral Commission (EC) which is praying the court to order the petitioners to furnish it (EC) with “further and better particulars” to enable it to respond to allegations of manipulating the election results in favour of President Mahama. A petition filed on December 28, 2012 by the 2012 presidential candidate of the New Patriotic Party (NPP), Nana Addo Dankwa Akufo-Addo; his running mate, Dr Mahamadu Bawumia, and the Chairman of the NPP, Mr Jake Otanka Obetsebi-Lamptey, is claiming that irregularities recorded in 4,709 polling stations inured to the benefit of President Mahama. President Mahama is the first respondent in the case, while the EC, the body that organised the elections and subsequently declared the results, has been joined as the second respondent. Following the filing of the petition, the NDC filed a motion three days later praying the court to allow it to join the case, with the argument that President Mahama stood on its ticket and it would, therefore, serve the interest of justice if it was allowed to join the petition. But Nana Akufo-Addo opposed the application and said the application for joinder would delay the hearing of the petition. The lead counsel for the NDC, Mr Tsatsu Tsikata, on January 16, 2013, moved the application for joinder on behalf of the NDC arguing that it would serve the interest of justice to allow the NDC to join the petition but lead counsel for the petitioners, Mr Philip Addison, opposed on the grounds that the joinder would delay the matter. Delivering its ruling at the court’s sitting in Accra yesterday, the court cited the 1992 Constitution and numerous legal authorities to reinforce its decision that it was imperative for the NDC to be allowed to join fully and not as a “spectator”. It said the 1992 Constitution and the Political Parties Act recognised the pivotal role of political parties such as the NDC and it would, therefore, “amount to injustice” if the doors of the court were shut on the NDC. Mr Justice Atuguba, who supported the lead opinion, said the applicant had rightly brought the application considering provisions in Rules 4(6),45(4) and 82 of the Supreme Court Rules (CI) 16 which should be read in conjunction with provisions in articles 63 and 64 of the Constitution. He said that it was a political party which sponsored candidates who contested presidential elections or public offices other than to the district assembles and that public officers envisaged under the Constitution included the President who occupied the highest public office in the land. Political parties, he said, had a constitutional right to organise political programmes in consonance with the Constitution and that the presentation of the President to the electorate by the NDC was in accordance with its programmes and objects. Justice Atuguba said considering provisions in Rule 45(4) of CI 16, the applicant had a very real interest to be joined to the petition, adding that it was better equipped with the facts in the matter than the President and was in a position to assist the court to unravel the issue in dispute. He said the court could not be intimidated by the number of witnesses to be called by the President. Mr Justice Paul Baffoe-Bonnie, who read the lead dissenting opinion, held that having read the lead opinion, he was still not convinced that the applicant was a necessary party that ought to be joined to the petition. He described the application as unmeritorious and proceeded to dismiss same, arguing that the principles for joinder were littered in several cases and the common thread in the authorities was the nature of relief as it affected the person to be joined and the avoidance of multiplicity of suits. He said the other denominator was whether the party was a necessary party, such that the joinder would effectively and completely enable the court to adjudicate on all matters in controversy. ‘’The applicant is an interested party and no more,’’ Mr Justice Baffoe-Bonnie held, and indicated that there was nothing that the applicant was a necessary party and wondered what it was that the applicant was taking to the table that the President did not know. He said there were absolutely no reliefs that were being sought directly or inferentially against the applicant, adding that having looked at all the laws, he could still not see how the applicant could be made a necessary party. Mr Justice Baffoe-Bonnie said the action in the court was a straight fight between human beings and not political parties, for which the law was clear, and, therefore, allowing the applicant would be discriminatory, which the court should not entertain. The applicant, he said, had only demonstrated that it had an interest in the petition without any explanation demonstrating that it was a necessary party. He said the law was clear that no political party could challenge the declaration of presidential results as in a petition and that it was only human beings who could do that. According to him, a person who joined a suit acquired the rights and obligations of a defendant and could also counterclaim. He said if one did not have the capacity to sue, that person could as well not join a suit. Mr Justice Baffoe-Bonnie said in the whole of Chapter Eight of the 1992 Constitution, nowhere is it indicated that a political party could challenge the removal of the President and, unlike Members of Parliament who, when they resigned from a political party had to resign from Parliament, the President could still maintain his position when he resigned from the party on whose ticket he won power. Mr Justice Anin Yeboah associated himself with the dissenting view and held that a joinder could be brought by either party to a suit or the court on its own motion but the test for a joinder was different from that of an intervener, as was the case of the applicant. He said the majority decision did not envisage that the applicant was a necessary party and whether its presence was essential for the effective determination of the suit. The applicant, he said, did not demonstrate that without it the court could not effectively and completely determine the case, while the rule on joinder did not provide for any joinder by intervener. He said the applicant also failed to satisfy the requirements of joinder by intervener and, therefore, its presence was unnecessary because without it the case could be dealt with by the court. Mr Justice Ansah also associated himself with the dissenting view and held that the application should fail because without the applicant the action would be contested without the presence of the applicant. Lawyers from both sides declined to comment on the court’s ruling, but the lead counsel for the petitioners, Ms Gloria Akufo, informed journalists that her team would work feverishly to serve the necessary papers on the parties in the case. The General Secretary of the NDC, Mr Johnson Asiedu Nketiah, expressed joy at the court’s ruling. The atmosphere in the courtroom was generally cordial as parties from both sides interacted with each other. A member of the NDC legal and communication team, Nana Ato Dadzie, and Mr Nketiah walked up to Nana Akufo-Addo for a brief but hearty chat while the court was not in session.