WHY MR. JUSTICE WILLIAMS ATUGUBA's DECISION ON THE NDC JOINDER APPLICATION IS CONVULUATED IN LAW

In the case between the NDC (applicant for the joinder application) and NPP(respondent), the nine-member bench (Mr Justice William Atuguba (presiding Judge), Justice Julius Ansah, Mrs Justice Sophia Adinyira, Ms Justice Rose Owusu,Merr Justice Jones Dotse, Mr Justice Annin Yeboah, Mr P. Baffoe- Bonnie, Mr Justice N. S. Gbadegbe and Mrs Justice Vida Akoto-Bamfo) agreed to the argument raised by the applicant’s lawyers for joinder and granted the application a 6-3 majority decision. This paper provides information on the case and argues why theJudges decision is flawed and totally disconnected with law and jurisprudence.

Arguments put forward by members of the bench

In her ruling, Mrs Justice Vida Akoto Bamfo (Justice of the Supreme Court) said that the Supreme Court considered the matter brought by the applicant. She explained that Ghana political parties including the NDC were integral part of the current democratic dispensation and which selected and sponsored the first respondent to stand on its ticket. She said the argument by the lawyers of the NPP that theapplicant (NDC) have no relation to the selection of a candidate and that it was done through a document cannot be sustained.

Mrs Justice Bamfo said if the Supreme Court should come to a decision that the presidential elections should be re-run the applicant would still play a critical role in the selection and sponsoring of its candidate. She said the NDC in this regard would be affected by the decisions of the court and in the interest of justice and fairness it should be allowed to join the petition.

Mr Justice William Atuguba agreed with Mrs Justice Bamfo and explained that the word party in the law to mean an interested party. He said Article 55 and 66 allows political parties to sponsor candidates to stand for presidential and parliamentary elections for political power and that the restrictive approach sometimes adopted bycourts to interpret a motion for application to a joinder should be avoided. Mr. JusticeAtuguba further explained that the applicant has a real interest in the matter and should be joined to the petition and assist the court to arrive at conclusive decision.

Mrs Justice Sophia Adinyerah and Ms Justice Rose Owusu, associated themselves with the presiding Judges majority decision and explained that even though thegranting of the application is discretionary, it should be done in such a manner that it does not waste the court’s time.
Mr Justice Jones Dotse allied himself to his colleagues and said that prior to NDCapplication was heard, the case had generated strong emotions in the country and that a lot of injustice would be done if the applicant was not allowed to join the petition to seek their interest to ensure fairness and justice. He advised the court toput in place appropriate mechanism to ensure that the case was determined expeditiously. Mr Justice Sulley Gbadegbe also allied himself to the majority butreserved his ruling on the matter.

Conversely, Mr Justice Baffoe Bonney who opposed the decision for the NDC to be allowed to join the petition said that he has still not been convinced that the suit fromthe applicant was meritorious and should be made to join the NPP petition. He argued that whatever interest that the applicant was seeking could be channelled through the first respondent in the petition to the same effect. Mr Justice BaffoeBonney also said although the applicants were able to demonstrate that they havevested interest in the case, they have failed to convince the court how they became a necessary party. He said the law clearly indicates a process by which one can challenge a petition and this must be done by ‘human persons and not an entity. He said that ‘apart from a Member of Parliament who cannot cross carpet and join another party, the president can resign from his political party and still rule with executive powers’.

In associating himself with Justice Baffoe Bonney, Mr Justice Anin Yeboah said the NDC was coming into the case as an intervener but has failed to convince the court why it should be joined to the petition. Mr Justice Anin Yeboah felt the court can still go ahead and determine the case since the interest of the NDC is not more than that of the first respondent in the matter. He however said the rules of court do not allow the applicant to intervene in a matter which they are not a party to or are not part of a suit. He argued that the application by the NDC was unnecessary since all the interest being pursued by the applicant could be taken care of by the first respondent in the petition. Mr Justice Julius Ansah who also sided with his said the action can be contested without the involvement of the applicant.

The court rose for few minutes break after the Judges’ ruling and when it re-convened, Mr Justice Atuguba (who headed the nine-member panel) stated that the court has granted the NDC its application to join the NPP petition. Amongst other considerations, Mr Justice Atuguba based the court’s decision on his statement that "the restrictive approach sometimes adopted by the court to interpret a motion for application to a joinder should be avoided."

Critical Analysis of the Judges Decision
The Judges’ consideration and decision is not only flawed and perverse in law but also problematic, especially for legal jurists and students of jurisprudence who may be following the case around the world. The Judges decision is also flawed as itdemonstrates a poor process of reasoning, adjudication, interpretation and application of the law on joinder applications in Supreme Court. Conversely, the late Lord Denning will be turning in his grave if he were to hear that supreme court judges in a common law system which he shaped and developed has strayed from the law merely because the law is restrictive without any legal basis whatsoever.

The judgement is convuluted with regard to a developed common law systembecause Judges in a system such as in the United Kingdom common law would not set a precedent without supporting their decision with either case law or Statute, Custom or a Convention to say the least. Why such eminent Ghanaian Judges in highest court in the land would make such basic errors in law when the law is so clear is totally mind boggling.

Johnson Asiedu Nketiah (aka, General Mosquito and now aka, Any Idiot Can Go To Court), in paragraph 6 of his affidavit of 31st December 2013 states that, "That the NDC, as a the party on whose ticket 1st Respondent contested the election, has a direct interest and stake in the matter and would be affected by any decision of this honourable court." In paragraph 7, Johnson Asiedu Nketiah also said that, "That I have been advised by counsel and verily believe same to be true that, as a party which would be directly affected by the decision, the NDC is entitled to be joined as a party and to be heard in respect of the petition and seeks to be joined by the motion herein."

The Judges decision is however convoluted because NDC as a party should not have been made a party to the petition filed by the Nana-Addo, Dr MahamudaBawumia and Jake Otanka Obetsebi-Lamptey for the following reasons:

First, in the Supreme Court, joinder is only permitted in only limited situations when the original jurisdiction of the Court is invoked. The rule says that the court may on its own motion or by application by a party join another person. Party is defined in the rules as a party to the suit and not just any interested party as Mr JusticeAtuguba and NDC seems to be saying. With respect to election petition, there is no room for joinder and when considered against the Applicant's petition, there no claim or assertion that the NDC committed irregularities or was a party to the irregularities as claimed against the Electoral Commission (EC). Therefore the NDC as a party is not a 'party to the suit' for the purpose of party as defined by the rules as above.

Secondly, Mr Justice Atuguba's statement that the NDC should be joined to the petition "to assist the court to arrive at conclusive decision" does not only go against the rules of the Supreme Court but also against jurisprudence. The Supreme Court cannot in jurisprudence call the NDC party as claimed by Mr Justice Atuguba's statement "to assist the court to arrive at conclusive decision." That is because ‘arriving at conclusive decision’ is the sole role of the Supreme court.

The third reason why the decision is perverse and floored is because of the NDC Party's claim that they should be joined because they sponsored President Elect John Dramani Mahama and that they as a party will be affected by decision of the Supreme Court and thus have a right to be heard in respect of the petition.

Ananalysis of this frivolous claim which Mr Justice Atuguba wrongfully relied on will clearly show that the NDC party will no doubt be effected if the Supreme Court was to declare that the President Elect should step down. This however is not a logicalground under law for Mr Justice Atuguba to make them a party to the suite as they can be called by the President Elect as a material witness to give live evidence on the effect the ruling will have on them. Equally in jurisprudence and in accordance with the rule on joinder, the mere fact that a person is sponsored does not make the sponsor a party to his actions.

An example of this claim is where 'Mr A' decides to sponsor his wife to take their children by car to their school every morning and does so by giving 'Mrs A', his car and money for fuel. One morning 'Mrs A' crushes her husband’s car in to 'Mr B'’s car and the latter files a suit for compensation. 'Mr A's'lawyer tell him that the court is likely to find his wife, who is unemployed a sum of £10,000. In this case study, Mr 'A' will be affected by the decision of the court financially as his wife is unemployed. 'Mr A' will however not be a party to the suit as he did not witness the accident. Secondly, Mr. A is not a party to the case because 'Mr B' in his claim makes no assertion against 'Mr A', just like the petition filed by the three citizens of Ghana makes no assertion against the NDC party. 'Mr A,' however is a material witness to the case and can give evidence for 'Mrs A' in that it was his car that she was driving and the fact that he "would be affected if the court decides to impose a fine for "Mr 'B’.

What this case study illustrates is that as the NDC party did not witness or were involved in the irregularities, it cannot be a party to the petition. However, the NDC party can be a witness to the case to explain how the court decision will affected them.

Mr Justice Atuguba appears to have invoked the principle of natural justice, namely, the right to be heard. He is however wrong to partly base the court’s decision on this principle because the principle only applies when an allegation or a claim has been made against a person or persons and this gives the accused party opportunity to respond. As the NPP petition is silent on the NDC, the latter has no right in law to be heard apart from being a witness for first respondent to the petition.

I heard on the radio that the NDC needed to be joined so that they can be bound by the decision. This statement is however wrong in principle and in law because one does not need to be a party to a case in order to be bound by court order. A clear example is the case of trespass.

Conversely, the minority judges led by Mr Justice Baffoe Bonney are spot on when they said that whatever interest the NDC have could always be channelled through the lawyers for the first Respondent and this is a view that I'm very much used to hearing in UK courts.

Given that the NDC have been incorrectly joined to the petition, this raises the issue of whether President Elect John. Mahama and NDC will call the same witnesses and if so then this has implications for whether the 6 judges will allow for this and/or for the case to drag on and undermine the need for dealing with election case expeditiously .

They have surely made an interesting case in to a messy fiasco!!!!

Godwin Adjei-Gyamfi
NPP UK EC

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