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Supreme Court
- Original Jurisdiction of this
court - Application for joinder
– Rule 45 (4) of the Supreme
Court Rules 1996, C.I. 16 -
Articles 2 (1) and 130 1(a), of
the 1992 Constitution.
HEADNOTES
This is an
application for an order of
joinder to the substantive
matter in this suit seeking an
order of this court to invoke
the original jurisdiction of
this court for certain
declarations, as either a
plaintiff or a defendant. The
application was opposed by the
plaintiff but the Electoral
Commission and the
Attorney-General did not.
Counsel for the said he wants
the matter to be heard between
the applicant and the
respondent. That it has come
to my notice that a suit has
been filed in this Honorable
Court, concerning the 45
Constituencies the Electoral
Commission seeks to create.
That I intend to contest as a
Parliamentary in the Ablekuma
West Constituency which is one
of the yet to be created
Constituencies.That I am a
registered voter in Ghana and a
Ghanaian citizen who intends to
present my humble view and
beliefs on the subject matter in
dispute in the substantive case
and on the Application for
injunction brought by the
Plaintiff if this application is
granted by this honorable court.
HELD
In conclusion
do I state that after
considering the motion paper,
affidavits in support of and in
opposition to the application,
the statements of case of the
respective parties and their
oral submissions in court, I am
satisfied that the applicant did
not succeed in demonstrating
that his presence is necessary,
or that he is a necessary party
in the matter as one likely to
be affected by the results. The
phrase is not as open ended as
he thinks it is; he cannot come
to court and recite the phrase
as a open sesame or a legal
abracadabra to be joined as a
party. It will muddy the waters.
I exercise the discretion I have
in dismissing the application. I
however rather grant him the
liberty of appearing in court
with an amicus brief. Towards
this end I direct that all
processes filed so far in
substantive case are to be
served on the applicant
forthwith.
STATUTES
REFERRED TO IN JUDGMENT
Supreme Court
Rules 1996, C.I. 16
1992
Constitution.
Supreme Court
rules, 1970, C. I. 13
CASES
REFERRED TO IN JUDGMENT
Tsatsu
Tsikata v Republic [2007-2008]
SCGLR ;
Luke Mensah v
A-G [2003-2004] SCGLR 128,
Dzaba III v
Tumfour [1978] GLR 18;
Dwinfour v
Boateng [1979] GLR 368, CA;
Ekwam v
Pianim [1996-97] SCGLR
117
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
ANSAH JSC:
COUNSEL
DAVID ANNAN
FOR THE APPLICANT
SAMUEL
ATTA-AKYEA, LED BY HON. NANA JOE
GHARTEY WITH HIM MRS. EFUA
GHARTEY , OSEI-OWUSU FOR THE
PLAINTIFF/RESPONDENT.
JAMES
QUASHIE-IDUN WITH HIM ANTHONY
DABI FOR THE 1ST
DEFENDANT/RESPONDENT.
HON. BENJAMIN
KUMBOUR (ATTORNEY GENERAL) WITH
HIM MRS.MBROKOH EWOAL (SSA) FOR
THE 2ND
DEFENDANT/RESPONDENT
R U L I N G
______________________________________________________________________
ANSAH JSC:
This is an
application for an order of
joinder to the substantive
matter in this suit seeking an
order of this court to invoke
the original jurisdiction of
this court for certain
declarations, as either a
plaintiff or a defendant.
The
application was opposed by the
plaintiff but the Electoral
Commission and the
Attorney-General did not.
Counsel for the said he wants
the matter to be heard between
the applicant and the
respondent.
In his
submissions before this court,
counsel for the applicant stated
he brought the application under
Rule 45 (4) of the Supreme Court
Rules 1996, C.I. 16. It reads:
”(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 to or
in substitution for any other
party.”
The rule just
quoted is under Part 4 of CI 16,
which deals with the Original
Jurisdiction of this court which
has been invoked by the
plaintiff in the substantive
action, seeking several
declarations from this court,
under articles 2 (1) and 130
1(a), of the 1992 Constitution.
By the use of
the word ‘may’, in this
rule in Rule 45 (4), the court
has the discretion to grant or
refuse the application.
Therefore, the question is
should the application be
granted or refused?
The substance
of the submissions of counsel
for the applicant was a virtual
repetition of the depositions in
his affidavit in support of the
application.
I quote the
salient paragraphs here now:
“2. That it
has come to my notice that a
suit has been filed in this
Honorable Court, concerning the
45 Constituencies the Electoral
Commission seeks to create.
4 That I
intend to contest as a
Parliamentary in the Ablekuma
West Constituency which is one
of the yet to be created
Constituencies.
5 That I am a
registered voter in Ghana and a
Ghanaian citizen who intends to
present my humble view and
beliefs on the subject matter in
dispute in the substantive case
and on the Application for
injunction brought by the
Plaintiff if this application is
granted by this honorable court.
6 That I am a
relevant intervener whose
presence will ensure that all
matters in dispute in this
proceeding will be effectually
and completely determined and
adjudicated upon once and for
all.
7 That this
application is made in the
interest of justice and to avoid
multiplicity of suits.
8 That I seek
to protect my interest in
standing for elections as a
Parliamentary candidate in one
of the 45 Constituencies due to
be created by the Electoral
Commission and seek to fight the
matter without let or favor
as a defendant or interested
party if the
application is granted.
That I am
told by Counsel and verily
believe same to be true that if
a matter affects me and do not
join the matter I may be bound
by the outcome of the matter or
suit.
10 That I am
told by Counsel and verily
believe same to be true that I
must hold myself in readiness
if Parliament passes the
relevant Constitutional
instrument finalizing the
creation of the 45
Constituencies, but the
plaintiff respondent in the
present suit seeks to terminate
the creation process.
11 That I am
told by Counsel and verily
believe same to be true that if
I bring a separate action common
questions of law or fact would
arise in the present suit and my
separate suit.
12 That I am
told by Counsel and verily
believe same to be true that the
reliefs I intend to seek are in
respect of or arise out of the
same transaction or series or
series of transactions in this
present suit, inter alia,
the propriety of the action of
the electoral commission ,
creating additional
constituencies in Ghana.
13 that I
therefore seek to join this
matter as an interested party or
defendant as the court deems
fit.”
The
application was stoutly opposed
by the respondent, the plaintiff
in the substantive suit. I
reproduce the salient paragraphs
of his affidavit in opposition
hereunder:
“5 That I am
advised by Counsel and verily
believe same to be true that
Applicant is not a necessary
party to this action
6 That I am
advised by Counsel and verily
believe same to be true that the
nature of this action does not
lend itself to the application
(sic) being made to join the
action.”
As stated
above, the court has the
discretion to grant or refuse
the application to join the suit
either as an interested party or
defendant as the court pleases.
But it is settled that the
exercise of this discretion is
predicated upon well defined
principles and a consideration
of all the circumstances
surrounding the particular
application. Another
consideration is the best
interest of justice.
One other
circumstance worthy of
consideration is the stark fact
that the Ablekuma West
Constituency is only one of the
constituencies proposed, or
intended to be created under
C.I. 78. It is yet to be
created; at best the process for
its creation is in progress in
Parliament. In connection
herewith, Article 11 (7) of the
1992 Constitution is relevant.
It reads:
“(7) Any
orders, Rules or Regulations
made by a person or authority
under a power conferred by this
Constitution or any other law
shall,
(a) be laid
before Parliament;
(b) be
published in the Gazette on the
day it is laid before
Parliament; and
(c) come into
force at the expiration of the
twenty-one sitting days after
being so laid unless
Parliament, before the
expiration of the twenty-one
sitting days, annuls the Orders
Rules or Regulations by the
votes of not less than
two-thirds of all the members of
Parliament.”
It is within
the power of Parliament to
approve or annul the instrument
laid before it. If it is
approved it becomes law and the
proposed constituencies will
come into being. Of course if on
the other hand the instrument is
annulled it will not.
By his own
deposition in paragraph 10 of
his affidavit in support of his
application the applicant
deposed that the plaintiff in
the substantive suit is making
efforts to terminate the
creation process by instituting
the action in suit number
J1/19/2012. He has been resisted
by the Electoral Commission and
the Attorney-General, who has
been named specifically as a
defendant in the writ. Both have
filed their defence to the
plaintiff’s action and also
their memorandum of agreed
issues. Both have also filed
their statements of case and
from their pleadings and
processes filed, the issue is,
is there still the need for the
presence of any other party to
settle any issue in dispute? If
the applicant feels he has not
been catered for or covered in
so far as his concerns and
interests are concerned and he
mounted his own action besides
the present one, can’t he
proceed to have that
consolidated with the
substantive? Can’t he have the
present action treated as a test
action to cater for all the
other persons with similar
aspirations when CI 78 is passed
into law? If this application
succeeds will all persons with
similar aspirations placed in
similar circumstances, that not
open the sluice/flood gates for
a myriad of suits to inundate
this court? Will it be just and
convenient to grant the
application then?
At present
the stage is set for the legal
battle to test the
constitutionality of the law in
C.I.78 set for 4th
October 2012. As at today, C.I.
78 having not become law, I
doubt if any legal rights can
flow from it. Ablekuma West
Constituency has not been
created as yet. This the
applicant knows truly well.
His
submissions are predicated upon
a possibility of an event of the
constituency being created and I
wonder what the situation will
be if Parliament for reasons
best known to it, decides to
annul the instrument?
The
applicant’s intentions to stand
for elections to Parliament have
not yet matured; they may fade
into oblivion, forgotten,
abandoned completely or
postponed for a hope which never
materialized, or turned awry.
The applicant
cited authorities to support his
application, like Tsatsu Tsikata
v Republic [2007-2008] SCGLR ;
Luke Mensah v A-G [2003-2004]
SCGLR 128, Dzaba III v Tumfour
[1978] GLR 18; Dwinfour v
Boateng [1979] GLR 368, CA;
Ekwam v Pianim [1996-97] SCGLR
117 at 118. Counsel for the
respondent submitted none of
them applied in this
application, (because of their
subject matters and true nature)
they were not decided upon
applications for joinder of
parties to pending proceedings.
Well may that be but what if
they stated principles very
relevant to the issues at stake
in this application for the
joinder of parties to an action
in court?
Ekwam v
Pianim (No. 1) (supra), for
example, was an application for
interim injunction to restrain a
political party, a non party to
the substantive suit, as an
interested party, likely to be
affected. This Court (coram:
Kpegah JSC) ordered the party to
be served as an interested party
which would directly be affected
by the orders of the court. His
Lordship said the most important
argument was whether the court
can properly grant an order
restraining a non-party to a
suit and answered that the
question could best be answered
by rule 60 of the then Supreme
Court rules, 1970, C. I. 13, on
which he relied to order NPP to
be served as an interested party
likely to be affected. His
Lordship was of the opinion that
‘…it is the
duty of this court to keep the
door to the shrine of justice
wide open rather, that to close
it.” I make no comments on that
statement. I only state it that
it is one of the principles on
which the administration of
justice hangs in this court.
Ekwam v
Pianim (No. 1) supra must be
distinguished from this
application on the facts and
circumstances. The best that can
be said is that that case is not
relevant to this application.
I do not
think any of the cases cited by
the applicant fared any better
and are held inapposite to this
case.
Another point
worthy of consideration is the
likely effect on the hearing of
the substantive suit if the
application is granted. The
respondent submitted in that
event, rules 46 – 50 of C.I. 16
would have to be complied with
before the hearing and this
would entail a delay in the
hearing. I do not think justice
can ever be sacrificed on the
altar of expediency, but the
true consideration is that in
the temple of justice,
proceedings ought to be
conducted in a manner
that will
achieve speedy and effective
justice, avoid delays and
unnecessary expense, and ensure
that as far as possible, all
matters in dispute between
parties may be completely,
effectively and finally
determined and multiplicity of
proceedings concerning any of
such matters, avoided.
Paragraph 8
of the applicant’s affidavit in
support quoted above reveals the
real purpose for which he
brought the application. I need
not repeat it here. In brief it
is so that he can fight the
legal battle “without let or
favor as a defendant or
interested party” whatever that
means. Is he suggesting he can
‘fight’ better than the present
defendants, the Electoral
Commission or the
Attorney-General with their
legal armoury?
In
conclusion do I state that after
considering the motion paper,
affidavits in support of and in
opposition to the application,
the statements of case of the
respective parties and their
oral submissions in court, I am
satisfied that the applicant did
not succeed in demonstrating
that his presence is necessary,
or that he is a necessary party
in the matter as one likely to
be affected by the results. The
phrase is not as open ended as
he thinks it is; he cannot come
to court and recite the phrase
as a open sesame or a legal
abracadabra to be joined as a
party. It will muddy the waters.
I exercise
the discretion I have in
dismissing the application.
I however
rather grant him the liberty of
appearing in court with an
amicus brief. Towards this end I
direct that all processes filed
so far in substantive case are
to be served on the applicant
forthwith.
,
[SGD] J. ANSAH
JUSTICE OF THE SUPREME COURT
COUNSEL;
DAVID ANNAN
FOR THE APPLICANT SAMUEL
ATTA-AKYEA, LED BY HON. NANA JOE
GHARTEY WITH HIM MRS. EFUA
GHARTEY , OSEI-OWUSU FOR THE
PLAINTIFF/RESPONDENT.
JAMES
QUASHIE-IDUN WITH HIM ANTHONY
DABI FOR THE 1ST
DEFENDANT/RESPONDENT.
HON. BENJAMIN
KUMBOUR (ATTORNEY GENERAL) WITH
HIM MRS.MBROKOH EWOAL (SSA) FOR
THE 2ND
DEFENDANT/RESPONDENT
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