Application for joinder to presidential election petition (Part 1)
Practice and procedure – Supreme Court – Original jurisdiction – Parties – Joinder – Application for joinder to petition brought under rule 45(4) of CI 16 – Petition challenging election of President presented under CI 74 – Whether or not rule 45(4) of the Supreme Court Rules, 1996 (CI 16) properly invoked – Constitution, 1992 arts 2 and 130(1)(a) and (b) – CI 16, rr4(b)(i), 45(4) and 82 – Supreme Court (Amendment) Rules, 2012 (CI 74) – Application for – Applicable principles.
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SUPREME COURT, ACCRA
(Civil Motion No J8/31/ 2013)
Published Thursday December 12, 2013
IN RE PRESIDENTIAL ELECTION PETITION;
AKUFO-ADDO, BAWUMIA & OBETSEBI-LAMPTEY (No 1)
v
MAHAMA & ELECTORAL COMMISSION
(NATIONAL DEMOCRATIC CONGRESS APPLICANT) (No 1)
BEFORE THEIR LORDSHIPS: ATUGUBA, ANSAH, SOPHIA ADINYIRA, R C OWUSU,
DOTSE, ANIN YEBOAH, BAFFOE-BONNIE, GBADEGBE, AND VIDA AKOTO-BAMFO JJSC
Judgment on 22 January 2013
The relevant facts of the case were as follows: On 7 and 8 December 2012, the second respondent, the Electoral Commission, the constitutional body established under article 43 of the 1992 Constitution conducted Parliamentary and Presidential Elections in the various constituencies across the length and breadth of the country.
At the end of the elections, the Electoral Commission, through its chairman, declared John Dramani Mahama, the Presidential Candidate on the ticket of the National Democratic Congress, a political party, as having been validly elected as President of the Republic of Ghana.
Thereafter, on 11 December 2012, the Declaration of President-Elect Instrument, 2012 (CI 80), was published under the hand of Dr Kwadwo Afari-Gyan, the Chairman of the Electoral Commission.
Upon the declaration of the results of the Presidential Election, the three petitioners: Nana Addo Dankwa Akufo-Addo, the Presidential Candidate of the New Patriotic Party (NPP); his running mate Vice Presidential Candidate, Dr Mahamadu Bawumia; and Mr Jake Obetsebi-Lamptey, the Chairman of the NPP, filed in the Supreme Court, a petition for a declaration that John Dramani Mahama was not validly elected President of the Republic of Ghana.
They also prayed for a further order declaring Nana Akufo-Addo, President of the Republic of Ghana, among others.
After service of the petition on John Dramani Mahama and the Electoral Commission, the first and second respondents respectively, they duly filed their answers within the statutory period. Subsequently, the National Democratic Congress (NDC) filed the instant application with supporting documents, in the Supreme Court, seeking for an order to be made for it to be joined as a respondent to the petition proceedings commenced by the three petitioners.
The thrust of the applicant’s case as contained in paragraphs (3), (5) and (6) of the supporting affidavit was that, it was the registered political party, which had nominated and sponsored the said John Dramani Mahama to stand on the party’s ticket in the Presidential Election; and that the declaration of the results had culminated into the proceedings before the court.
Accordingly, it had an interest and a stake in the matter and stood to be directly affected by the outcome. It was therefore necessary that it be joined as the third respondent to the petition.
Relying on article 55, clauses (1), (2) and (3) of the 1992 Constitution, counsel for the applicant National Democratic Congress contended that since the role of political parties in shaping the political will of the people; and, particularly, its role in the sponsorship of candidates for public elections were guaranteed under the Constitution, the interests of justice would be better served if it were joined.
The petitioners raised an objection to the application for joinder on the grounds that the application was incompetent. Counsel for the petitioners argued that the Supreme Court (Amendment) Rules, 2012 (CI 74) - the applicable rules relating to petitions for challenging the election of President - had no rules relating to joinder and that rule 45(4) of the Supreme Court Rules, 1996 (CI 16), under which the application was brought, had not been properly invoked.
Counsel further submitted that the constitutional provisions relating to the election of the President, particularly article 63 thereof, was silent on the role of political parties in the filing of the necessary documentation.
The nomination was by a document with the requisite signatories within the areas of authority in each district assembly. He further contended that since under article 64 of the Constitution, as amplified by regulation 68 of CI 74, only a citizen could file a petition, it followed that the applicant, as a political party, could not be joined to the proceedings.
According to counsel, since there was neither a claim against the applicant nor any relief sought against it, its presence was not necessary for the effectual adjudication of all the matters in dispute. Counsel thus concluded that the application for joinder was filed with the sole purpose of delaying the process.
On these facts, the Supreme Court granted by a six to three majority decision (per Atuguba, Sophia Adinyira, R C Owusu, Dotse, Gbadegbe and Vida Akoto-Bamfo JJSC – Ansah, Anin Yeboah and Baffoe-Bonnie JJSC dissenting the application by the NDC for joinder as a respondent to the instant petition challenging the validity of the election of the President) for the following reasons:
First, contrary to the contention of counsel for the petitioners, ie the respondents in the instant proceedings, the application brought under rule 45(4) of the Supreme Court Rules, 1996 (CI 16), for an order to join as a respondent to the petition, challenging the election of the President under Supreme Court (Amendment) Rules, 2012 (CI 74), had been properly invoked for two reasons:
First, the Supreme Court has been vested with original jurisdiction in all matters relating to the interpretation and enforcement of the Constitution under articles 2 and 130(1)(a) and (b). Second, a salient feature of the procedure for invoking the court’s original jurisdiction was the issuance of a writ, the filing of the plaintiff’s and defendant’s statement of case.
The procedure under CI 74 was essentially the same; and indeed, it was clear from rule 4(b)(i) of CI 16, that a challenge of the election of the President under article 64 of the Constitution has been classified under the Supreme Court original jurisdiction.
Her Ladyship Vida Akoto-Bamfo JSC in delivering the lead ruling of the majority of the Supreme Court said: “Undoubtedly, a declaration that the President was not validly elected is a constitutional matter; and the court is therefore seised with its original jurisdiction in the enforcement of the Constitution. Rule 45(4) of CI 16 was therefore properly invoked for the purposes of this application.”
Second, the overriding principle in granting an order of joinder of a person as a party to an action in addition to or in substitution of any other party under rule 45(4) of the Supreme Court Rules, 1996 (CI 17), was that all the necessary and proper parties should be before the court so as to ensure that all matters in dispute might be effectively and completely determined and adjudicated upon. It must be stated that the person to be joined would depend upon the facts of the case, relevant substantive law and the rules of procedure.
His Lordship Atuguba JSC concurring said: “Since rule 45(4) of CI 16 empowers this court “on its own motion” to join further parties to the action, it matters little whether the applicant herein is a “party” or not within the meaning of the rule.
However, rule 82 of CI 16 defines “party” as follows: “ ‘party’ includes a party to an appeal or any other proceedings and counsel of that party;” (The emphasis is mine). It is trite law that the expression “includes” except where there is manifested an intention that it should do so, does not have an exclusive connotation in a statutory definition, unlike the word “mean.”
There is no such manifestation of intent in this definition. I should therefore hold that the word “party” in the context of this provision includes an interested party.”