Nana Vrs Mahama: GO AWAY! Judges Boot NDC Joinders
The dream of more than 350 National Democratic Congress (NDC) supporters to join the landmark election petition was shattered yesterday when the Supreme Court threw out their application.
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 and 8, 2012 general election.
Light At the End of the Tunnel
The ruling thus sets the stage for the trial of the much-awaited petition which has also attracted international attention, except that the parties in the case have been given seven 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 seven days, the court said they should communicate the disagreement to the court registry for a date to be fixed to thrash out the issues.
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 seven days to do so.
The joinder applications by the NDC supporters were seen by many legal experts as a ploy to delay the court process.
The orphaned NDC supporters
Delivering the ruling after a heated argument on whether or not to allow the NDC supporters to join, the court said, 'The joinder is neither necessary or 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 were an interested or necessary party to the petition.
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 were necessary parties to the process and added that it was for 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, adding that the first (President Mahama) and second (NDC) respondents could protect the interest of all the applicants who feared their ballots could be annulled.
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 practising number to the application and advised him not to repeat that mistake.
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,' noting 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 was 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.'
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 applications while Samuel Kodzo, who was representing the NDC, also said he had no objection and Mr Senanu subsequently proceeded to move the motion.
He said the applicants, who were 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 was the votes of voters that gave 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 were 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 proceedings 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 answered 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 addressed consolidation of petition, would not easily open the floodgates for more people to join the process as argued by the petition.
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 organise a 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.
Opposing the application, Mr Addison said the applications were filed with synchronised 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, was interested in the outcome of the petition and the applicants could not hold that because they voted, they should, therefore, be allowed to join the petition.
He said the nature of the petition put the applicants squarely in the camp of the respondents, especially the first and third, adding, 'The interests they are seeking to protect are the interests that every Ghanaian has in this petition.'
Mr. Addison said the votes the petitioners were seeking to annul 'cut across the board so why would they say those votes are their vote?', noting that the petitioners were seeking to annul votes that even included those who voted for the petitioners.
He said it was wrong for the applicants to hold that they had the same right as the petitioners, noting, '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 should be allowed to join because they had 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 answered 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 first and third respondents. If they are allowed and they bring evidence, it will be repetitive and repressive.'
He said the non-joinder of the applicants would 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 (second 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.'
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 a 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, noting, 'After close of pleadings, all the parties appear for directions.'
Justice Gbadegbe then asked if application for direction and memorandum of issues did not achieve the same purpose but Mr. Kodzo answered, '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 of the application because there was 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, adding that when the NDC was being admitted to join the petition, Justice Dotse had 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.
Mr Kodzo then said that contrary to what the petitioners said, Rule 69 (c) spelt out the way forward, noting, 'It is provided for. We will come to court and the court will give us direction.'
At this point, 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, 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 would treat petitioners' 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.
This development provoked reactions from the petitioners' counsel while the respondents' 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 seven clear days before the trial, mode, among others, as some of the 'substantial' issues that they would raise objection.
Justice Gbadegbe then asked all the parties to 'put your heads together to narrow down the issues to be set for trial'.
Justice Doste then said that documents available showed that issues of the first and second respondents were '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 were setting for trial, failure of which would have to be determined by the judges.
By William Yaw Owusu