The Supreme Court Thursday unanimously threw out applications filed by 327 persons who sought to join the petition contesting the legitimacy of President John Dramani Mahama as the winner of the December 2012 presidential election.
In a unanimous decision, the nine-member panel held that the presence of the 327 applicants, who had come under 35 separate applications; “was neither necessary nor convenient.”
It said, their being allowed to join, would defeat the purpose of the Supreme Court (Amendment) Rules 2012 (C. 1. 74); which calls for an expeditious trial in a presidential electoral petition.
The effect of the court’s decision is that, the door has been shut on any person or group of persons, who might harbour the intention of joining the petition which is calling for the annulment of 11,916 votes .
The petition was filed by the presidential candidate of the New Patriotic Party (NPP) in the December 2012 elections, Nana Addo Dankwa Akufo-Addo; his running mate, Dr Mahamadu Bawumia and the Chairman of the NPP, Mr Jake Obetsebi-Lamptey.
In a separate ruling, the court also dismissed the National Democratic Congress (NDC’s) opposition to the petitioners’ application for directions for issues to be set out for trial.
The court gave parties in the case seven days to meet, deliberate and agree on common issues to be set out for determination.
In dismissing the application for joinder filed on behalf of the applicants by their lawyers, Mr Kwabla Senanu, Mr Stephen Ahor and Mr Eric Tieku; the court was of the view that the interest of the applicants could best be served by the presence of President Mahama and the National Democratic Congress (NDC) in the petition.
The court was presided over by Mr Justice William Atuguba, with Mr Justice Julius Ansah, Mrs Justice Sophia Adinyira, Ms Justice Rose Owusu, Mr Justice Jones Dotse, Justice Annin Yeboah, Justice Paul Baffoe-Bonnie, Justice N.S. Gbadegbe and Mrs Justice Vida Akoto-Bamfo as members.
The court said the applicants could rather serve as witnesses in the case should the need be.
It further held that the 1992 Constitution placed a 21-day mandatory ultimatum on the petitioners to file their petition because electoral matters were urgent and needed to be treated with urgency.
The court also reminded the applicants that Rule 61 (4) of the Supreme Court (Amendment) Rules 2012, C. I. 74 touched on expeditious determination of presidential electoral petitions, and for that reason, the applicants being allowed to join would defeat that purpose.
“For all the foregoing reasons, the application for joinder is dismissed,” Mr Justice Atuguba stated on behalf of the court.
Mr Senanu, who treated the audience in court to bouts of laughter during his presentation, dozed off after the ruling but Mr Justice Dotse queried, “Mr Senanu, are you sleeping?”.
Counsel quickly jostled out of his nap and began interacting with his colleagues resulting in more laughter from the packed courtroom.
On January 22, 2013, the court in a 6-3 majority decision, allowed the NDC to join the petition with the reason that the party; on whose ticket President Mahama stood for the elections, would help resolve the issues once and for all.
When the case was called around 10:13 a.m, the 300 plus applicants seeking to join the dispute were refused entry by security officials into the main Supreme Court yard, because they did not have accreditation.
When the first application was called, none of the applicants stood up, and Mr Ahor informed the court that his clients were refused entry, but he pleaded with the court to allow him to go out to fetch them.
He returned some minutes later and informed the court that the applicants had left because they were stopped at the main entrance to the court.
That, notwithstanding, the court permitted the application for joinder to be moved after the parties in the case had agreed to the court’s proposal to merge the 35 applications fixed for hearing.
Asked how many had applied to be joined, Mr Senanu said from the last count, the number was 400 but added that “more people are filing as I speak.”
Mr Senanu’s argument
Mr Senanu argued that the applicants were interested and necessary parties in the case, because they voted in the December 7 and 8, 2012 elections and it was, therefore, important they were allowed to join.
Counsel argued that it was important for his clients to be heard so the ends of justice would be served, but the barrage of questions posed by the panel members all pointed to the fact that the court did not agree with Mr Senanu’s position.
The following transpired in court between Mr Senanu and the panel:
Mr Justice Gbadegbe: What order will be made against them or in their favour?
Mr Senanu: They say no fraud occurred in the elections
Mr Justice Gbadegbe: You are just saying necessary, proper, intervener for the past 30 minutes – you are at the same position. Almost every registered voter in Ghana can line up in this court, is that what you are saying?
Mr Senanu: They are saying votes in 11,916 polling stations should be annulled (in reference to the petitioners call for the annulment of votes in those polling stations because of what they termed gross and widespread irregularities.
Mr Justice Gbadegbe: This is a constitutional matter that will affect almost everybody in Ghana including us here but not all have the right to be here.
Mr Justice Atuguba: All these submissions, is there anything new? You are just revolving around “we are a necessary party and we will be affected.”
Mr Senanu replied and said to prevent an “avalanche of cases”, it was important the court allowed his clients to join, but Mrs Justice Akoto-Bamfo interjected and questioned which paragraph of his brief he was quoting from.
Counsel said, “my Lord, I am sorry,” and attempted to continue with his submissions; but the panel thanked him and asked him to resume his seat.
Counsel for the petitioners, Mr Philip Addison, opposed the application for joinder and stated that except the titles of the applications, names of the applicants and polling stations; the depositions of the applicants were the same.
He argued that the applications were intended to delay the hearing of the petition and further stated that every Ghanaian was interested in the petition, adding that the votes being sought to be annulled cut across board.
Mr Addison said the applicants came to court months after the polls ended and for that reason, “they have no right to bring the application at this time.”
“There are others who do not want the status quo to be maintained and they cannot come because time has run out,” Mr Addison said in response to the applicants’ prayer to be allowed to protect their votes.
Counsel maintained that the applicants’ interests could best be served by President Mahama and the NDC who were fully represented in the petition, adding that they were not a necessary party and, therefore, did not see how their presence would facilitate the full determination of the petition.
Mr Addison said he knew there were more joinders being filed, and it was, therefore, necessary that the court dismissed them and awarded punitive damages, but Mr Justice Gbadegbe stated on a lighter note, “won’t you wait for our position?” All laughed at his comment.
However, counsel for the President, Electoral Commission (EC) and the NDC, Mr Tony Lithur, Mr James Quashie-Idun and Mr Samuel Kodzo, associated themselves with Mr Senanu’s submissions.
“We are not opposed and we believe there is merit in it,” Mr Kodzo stated emphatically.
Civility in Court
In response to an earlier submission by Mr Addison that he (Mr Addison) did not understand a shred of what Mr Senanu argued in court; Mr Justice Dotse advised all parties in the petition to adopt civility in their language.
He said it was not good for Mr Addison to state he (Mr Addison) did not understand what Mr Senanu’s submissions and pointed out that “it is what we say that goes out and inflame passions in public.”
“We do not want a repetition,” Mr Justice Dotse said to which Mr Addison replied, “point well taken.”
The court then rose and returned after an hour to deliver its ruling on the applications for joinder.
Mr Kodzo opposed the petitioner’s application for direction on issues to be set out for trial on the grounds that it was alien to court practice.
According to counsel, the normal practice was for the parties in the case to come to court to be directed on what to do, but Mr Addison said the important issue was the substance of the case and not the form it took, adding that the aim of filing the application was to settle the matter expeditiously.
Counsel argued that the President and the EC had also filed their applications for directions and for that reason Mr Kodzo’s objection must not be entertained by the court.
Second Ruling of the Day
The court in a unanimous decision overruled Mr Kodzo’s objection and said in the interest of justice, the application for direction would be treated as memorandum of issues under the Supreme Court Rules.
Mr Kodzo then informed the court that he had not filed the application for directions and prayed the court to give him a short adjournment to file, but Mr Justiced Gbadegbe queried, “we have about 30 issues. Do you want to file more”.
Nonetheless, Mr Kodzo was granted leave to file the NDC’s memorandum of issues.
Try and Meet
Mr Justice Gbadegbe advised the legal teams in the case to sit and narrow issues for determination, but Mr Lithur explained that the President did not agree with the petitioners on some issues raised.
For instance, President Mahama is praying the court to decline the petitioners’ prayer for the court to allow parties in the case to adopt audio-visual aids in the presentation of evidence.
On the petitioners’ prayer that parties in the case be made to exchange documents to be relied on seven days before trial; the President is pleading with the court to reject that request.
President Mahama is also praying the court to decline the petitioner’s suggestions that seven days before the trial; all parties must be made to present a list of witnesses and a brief summary of the nature and relevance of each witness’ testimony to enable the court to determine its probative value.
He has, however, not opposed the petitioners’ suggestion that the hearing of the petition should take two months.
After the court’s intervention, the parties agreed to meet to deliberate on issues to be set out for trial.
They also agreed to state their disagreements when the need arises for onward submission to the court for resolution.
The court subsequently gave lawyers for parties in the case seven days to reach an agreement on common issues to be set out for trial.
It said, the parties must set out issues they disagreed on and communicate them to the registrar of the court for the court to settle the issues before trial.
All the three petitioners were present but the President was absent. The NDC was represented by its General Secretary, Mr Johnson Asiedu Nketiah, while the EC was represented by a Deputy Commissioner in-charge of Operations, Mr Sarfo Kantanka.