Akufo-Addo Vrs Mahama—NDC Joins Fight

The Supreme Court yesterday, in a 6 – 3 majority decision, ruled that the National Democratic Congress (NDC) could join the New Patriotic Party (NPP) petition challenging the declaration of John Dramani Mahama as president.

The nine-member panel, chaired by Mr. Justice William Atuguba, therefore directed the NDC, which had filed the motion for joinder, to file its answer to the petition by the NPP presidential candidate and two others within seven days of receipt of the petitioner's process.

The case was subsequently adjourned to January 29 for the NDC to enter the fray as the 3rd respondent to the petition filed by Nana Addo Dankwa Akufo-Addo, Dr. Mahamudu Bawumia and Jake Otanka Obetsebi-Lamptey.

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 a respondent.

Initially, the case J8/31/2013 had Nana Akufo-Addo, his running mate Dr. Bawumia and NPP Chairman Mr. Obetsebi-Lamptey as the petitioners with President Mahama and the Electoral Commission as respondents. However, as the case stands 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 the 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 reasons.

All the judges gave different interpretations to the rationale behind the 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 was 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 were 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 was not allowed to join and the court makes it decision, it could affect its interest as a party that nominated and sponsored the 1st respondent to contest the election.

The judge said it was obvious that political parties were integral to the democratic dispensation and the political process as espoused by Article 55 of the 1992 Constitution.

The judge said that it was 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 would not be just for the NDC who sponsored a candidate (Mahama) whose election was being challenged to be asked to sit on the fence. She said should the court come to the conclusion that the election should be re-run, the same candidates would 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 should not be denied its constitutional rights.

Justice Akoto Bamfo said that it was obvious that the 3rd petitioner (Jake) was in court to protect the interest of his party and the NDC was 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 was a danger of “leaving statutes disjointedly and must be read inter alia under Article 55 of the Constitution”, if the applicant's case was to be appreciated properly.

He said the rules were clear that political parties were 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 can sponsor a candidate.”

He mentioned that Article 297 (c) talks about the stakes of parties in government while Articles 76 and 78 talk about how state institutions should treat political parties.

He also said that Articles 55 (2) and (10) give every citizen the right to join any political party of his choice or participate in any political activity adding that a political party had the constitutional right 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 was also seeking to give practical effect to its involvement in the political process.

He said that the purpose for the joinder was to ensure that any issue regarding the case was 'effectively and completely' determined so that the court's decision would be binding on all the parties.

He said the NDC had a 'very real interest' as the 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 had specific rules to cater for that.

Adinyira Concurs
Justice Adinyira, who concurred with the majority, 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 an application was discretionary 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 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 would put appropriate measures in place to ensure that the case was not unduly delayed.

Gbadegbe Concurs
Justice Gbadegbe said he agreed with the majority's view but said “I reserve my conclusion.”

Minority Dissents
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 applicant's averments clearly show 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 would not serve the interest of justice.

He said the 1st respondent (President Mahama) had a higher stake than the NDC because it was the president's election which was being challenged and the NDC had no business being part of the case.

Justice Baffoe-Bonnie said that the petitioners had 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 could not seek to join the petition then he did not see why the majority could decide that the NDC could join in the name of 'pluralism and multipartism' adding “it is obvious discrimination.

“The applicants have only demonstrated that they have an 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 made it clear that political parties could not file petitions but it could be done by human persons adding that “surely, if you don't have the capacity to sue you must lack the capacity to sue.”

He said in the instant case, the law restricted the word 'include' when it comes to those who had 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 had been added to the petition because the law specifically mentioned him and added that if the President resigned from the NDC today, he would continue to be President but that could not apply in the case of an MP and that was why the NDC could not takeover and seek to join the case when President Mahama was the one directly affected.

Annin-Yeboah Dissents
Justice Annin-Yeboah said there were three channels through which an applicant could 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.”

Mr Justice Anin-Yeboah, a civil procedure lecturer at the Ghana School of Law, said that in this case however, a non-joinder of an intervener would not affect the case in anyway and added that “the applicants 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 was 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,” he said, 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 saying, “I agree that this application must be dismissed.”

He said the petition was properly constituted before the court and the action could be completed without the presence of the applicant.