There was no show at the High Court hearing the eligibility case against the National Democratic Congress' parliamentary candidate for the Klottey Korley constituency Dr. Zanetor Rawlings.
The presiding judge, Kwaku Aka Boafo, was reported to have gone on a seminar but the plaintiff MP of the constituency MP, Nii Armah Ashitey and his lawyer, Gary Nimako were present as well as the media and other spectators.
Nii Armah Ashitey who is also the incumbent MP dragged Dr. Rawlings to court challenging her candidature as a non-registered voter.
The Electoral Commission has confirmed that the daughter of former President Rawlings is not a registered voter in Ghana.
At the last sitting, Lawyer for the MP, Gary Nimako requested for an adjournment of the suit to allow him make necessary security arrangements claiming his life was being threatened by unknown assailants.
Meanwhile, the case has been postponed to Friday, 11 March 2016.
Background
The Plaintiffs, Hon.NiiArmahAshietey and Nii John Coleman, sued the National Democratic Congress (1st Defendant), Dr. ZanetorAgyeman Rawlings (2nd Defendant) and the Electoral Commission (3rd Defendant) alleging that the 2nd Defendant was not eligible to contest the KlotteyKorle Primaries held in November 2015, because she was not a registered voter with the Electoral Commission.
On January 25, 2016, Counsel for the 2nd Defendant, Lawyer Godwin EdudzieTamakloe (supported by Ms. Sanja Morrison) filed an application requesting the Court to throw out the case.
The High Court dismissed the application, describing it as misconceived and unmeritorious. The Application failed both on procedural grounds and on its merits.
Below is a summary of issues raised and ruling.
Issue 1
Does the Plaintiff have capacity to mount this action based on the claims endorsed on the writ?
Argument of Counsel for the Applicant
Counsel for the Applicant argued that • thePlaintiffs lackedthe legal capacity to institute the action because they had not demonstrated that their ‘personal rights’ had been affected, violated or likely to be violated;
• the action was premature, moot and an abuse of the process because Plaintiffs should have exhausted the party machinery for grievance resolution.
Ruling of the Court
• The argument on capacity is untenable and is therefore dismissed.
• With utmost respect and deference to learned Counsel, what personal rights is he talking about? Being members of the NDC and having contested the elections with the 2nd Defendant, who else has sufficient interest in the subject matter in this suit than the Plaintiffs herein? They are challenging the outcome of the elections in which they participated as candidates. They therefore have legal competence and sufficient interest to bring the case.
• While Counsel rightfully catalogues the bureaucratic hoops the 2nd defendant jumped through to qualify as a candidate to establish her bona fides, the same applies to the Plaintiffs herein, and by implication, they have interests to protect in this matter and are not mere busybodies.
• If the allegation that the national Constitution is violated by the defendants is true, then the Plaintiffs do not need to be members of the NDC and/or prove any ‘personal right’ to institute this action.
• The submission with regards to non-compliance with the internal mechanism of the NDC is also dismissed because the NDC Vetting Committee and officers are those accused of orchestrating the alleged breach of both the NDC regulations and the Constitutional provision. In my view, when the national Constitution is said to have been breached a Party’s internal mechanisms and remedies cannot be the panacea. The court is the appropriate forum for redress.
Issue 2 Is Estoppel applicable in this case?
Arguments of Counsel for the Applicant Counsel for the Applicant argued that
• thePlaintiffs are estopped from contesting the Applicant’s qualification because the 2nd Defendant filed her nomination forms; provided all essential information required of her; was duly vetted by a committee chaired by the NDC General Secretary together with other national executive officers;was declared qualified to contest for Parliamentary Candidate; competed against the plaintiffs and emerged successful. The present action is therefore an afterthought and in bad faith;
• the Plaintiffs are estopped from bringing this action because they are relying on petitions authored by individuals who were plaintiffs in the case of Joseph Botchway and 2 others v NDC and the judge in that case (Mills Tetteh J) held that the suit was brought in bad faith and therefore it was an abuse of court process.
Ruling of the Court
• The argument that the Plaintiffs are relying on petitions authored by some of the individuals who were the plaintiffs in the case of Joseph Botchway& 2 others v NDC and 2 others, is over-enthusiastically put. I have no difficulty in dismissing the submission as misconceived and unmeritorious.
• For an estoppel res judicata to be properly founded in law, the authorities agree that the parties in the case and the facts or legal issues raised in the earlier case ought to be the same as the present. I am not persuaded that the legal issues are the same because the Plaintiffs’ herein interests are totally different from the plaintiffs in the earlier case.
• Also there is no merit with regards to the submission on estoppel on the grounds that because the Plaintiffs contested with the 2nd Defendant they are estopped by conduct from raising her eligibility now. With respect, what legal principle is that? If one was not eligible to contest the election because he/she was not qualified, he/she can at anytime even after the General Elections be disqualified on the grounds that the election was a nullity.
Issue 3
Is the High Court the proper forum based on the pleadings?
Arguments of Counsel for the Applicant Counsel for the Applicant argued that
• thePlaintiffs should have resorted to the internal mechanism of the party and not the High Court because the NDC is a voluntary organization whose Constitution and Regulations do not form part of the laws of Ghana;
• the Plaintiffs were in the wrong forum because the nature of the relief being sought calls for the interpretation of Article 94(1)(a) and that is the preserve of the Supreme Court. The High Court is only clothed with jurisdiction to deal with matters relating to the enforcement of Fundamental Human Rights under article 33 of the 1992 Constitution.
<<Print>>