Application for joinder to presidential election petition (Part 2)
Practice and procedure – Supreme Court – Original jurisdiction – Parties – Joinder – Application for – Applicable principles – Application by political party for joinder as respondent to petition under CI 74 – Whether or not application for joinder proper – Constitution, 1992, art 64(1) – Supreme Court Rules, 1996 (CI 16), r 45(4) – Supreme Court (Amendment) Rules, 2013 (CI 74), r 68(1) and 3(a).
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Supreme Court, Accra
(Civil Motion No J8/31/ 2013)
Published Thursday December 19, 2013
IN Re-Presidential Election Petition;
Akkufo-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 January 22, 2013
The relevant facts of the case are the same (as stated in Part 1 of the Digest on the same topic) which was published on Thursday, December 12, 2013.
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 third reason in addition to the two reasons given in the Part 1 of the publication, namely:
Where two parties were in a dispute before a court of competent jurisdiction and the determination would directly affect a third party (such as the applicant National Democratic Congress (NDC) in the instant case) either in its pocket or right or would be required to make a contribution either in cash or in kind, then the court ought to exercise its discretion in favour of the applicant since by so doing all matters would be effectually and completely determined between all those concerned in the outcome.
In the instant case, the applicant NDC, not being a citizen, could not file a petition under article 64 of the Constitution; but certainly had an interest in the issues before the court and therefore being likely to be affected in its legal right or pocket, the doors of justice should not be shut against it.
In the view of the majority of the court, to ask the applicant, a political party, whose rights were enshrined in the Constitution and whose pivotal role in the nomination, selection and sponsorship of the subject of the petition could not be denied, to only watch the proceedings from the sideline would, as it were, amount to an injustice.
It was certainly in the interest of justice that a party who would be directly affected by the outcome of the dispute before the court be joined to the proceedings.
As earlier indicated, their Lordships Ansah, Anin Yeboah and Baffoe-Bonnie JJSC dissented from the majority decision. In that regard, His Lordship Baffoe-Bonnie JSC said: “The common thread that runs through all these cited authorities, namely: Apenteng v Bank of West Africa Ltd [1961] 1 GLR 81 at 82; Aegis Shipping Co Ltd v Volta Lines Ltd [1973] 1 GLR 438; Montero v Redco Ltd [1984-86] 1 GLR 710 at 717, CA; and Sam (No 1) v Attorney-General [2000] SCGLR 102 is: the nature of relief or claim as it affects the person sought to be joined; avoidance of multiplicity of suits; is the person sought to be joined, or seeking to join, a necessary party, ie one whose presence would lead to an effectual and complete adjudication of the matter in controversy before the court; or one whose exclusion would see aspects of the cause or matter unadjudicated upon.
It has been urged on this court by the applicant NDC that it is an interested party, having sponsored the first respondent, John Dramani Mahama and supported him with resources and personnel… The supporting averments by the applicant...only go to show that the applicant is an interested party and no more.
There is nothing in the averments that shows that it is a necessary party to the resolution of the matters in controversy. Mere interest without more does not qualify one to be joined to an action as a party. What is it that the applicant brings to the table that the first respondent does not bring?
What interest does the applicant have that cannot be taken care of by the first respondent, who I dare say has a higher stake in the outcome of the action than the applicant seeing that it is his election which is being challenged? From the state of the pleadings what relief is being sought by the petitioners either directly or inferentially, against the applicant who is seeking to join?
None! Absolutely no relief whatsoever. And the principle has always been that the court cannot compel a plaintiff to proceed against a party he has no desire to sue!...These provisions, ie article 64(1) of the 1992 Constitution and rule 68(1) and (3)(a) of CI 74 make it clear that a political party or an institution cannot challenge the declaration of results as a petitioner.
A petition challenging the validity of presidential results can be filed only by a human person. By the rules of procedure a person can be joined to an action on his own application, a party, or even the court.
Further, in the nature of things, when a person joins an action or is joined to an action as a defendant or respondent, he acquires all the rights and responsibilities as the original defendant.
One of such rights is his right to counterclaim or cross-petition as the case may be. So if we were to go by the submissions of counsel for the applicant NDC, we will find ourselves in a situation where the court can join an institution or a non-citizen to a petition challenging the election of the President, but, unlike the original respondent, the law denies him the right to cross-petition or counterclaim.
This will be discriminatory and the Constitution frowns on it. Surely if you don’t have the capacity to sue, you must lack the capacity to be sued!... Seeing that no claim has been made by the petitioners either directly or inferentially against the applicant, what are they going to respond to if and when they are joined to the action?”
Furthermore, His Lordship Anin Yeboah JSC for the minority also said: “My respected colleagues in the majority are of the view that since the applicant NDC is a necessary party, the application ought to be granted.
With due respect, no attempt was made to define ‘necessary party’… In this application for joinder under consideration, the applicant has not demonstrated that without its presence this court cannot effectually and completely determine the petition.
Where in the affidavit in support of the application for joinder, was it deposed to that without its presence the court cannot effectually and completely determine the petition, if I may respectfully ask?
In my opinion, both the first and second respondents to the instant petition, by implication, felt very comfortable with the parties as constituted. The petitioners also did not file any application to join the applicant under the same rule 45(4) of the Supreme Court Rules, 1996 (CI 16), which regulates joinder application.
It provides thus: ‘45(4) The Court may, on its own motion or on the application of a party, order that any other person shall be made a party to the action in addition to or in substitution for any other party.’
Looking at the rule itself, it does not provide any joinder of an intervener. This is absolutely clear, and one cannot multiply words to say that joinder under the rule could also be allowed by an intervener as in this instant case. If this court is invoking basic common law rules regulating joinder and allowing the applicant to join this petition, I will have no problem.
My problem is that rule 45(4) of CI 16 does not provide for joinder by an intervener. All the leading cases cited by the president of the court appears to be joinder on the court’s own motion or at the instance of a party in the proceedings. For example in the Ekwam v Pianim (No 1) [1996-97] SCGLR 117 the order for joinder was rightly ordered by Kpegah JSC and not at the behest of any of the parties.”
Finally, Ansah JSC also dissenting said: “I would also hold that the petition could be well and properly contested by the parties before the court without the presence of the applicant.”
(Editorial note: The next publication of the Digest is scheduled for Thursday, January 16, 2014.)