On Friday, 27 December, 2024, the Supreme Court will be hearing the National Democratic Congress [NDC]’s Certiorari application on whether or not to quash the decision of the Accra High Court regarding its order to the Electoral Commission to ensure a complete collation of the Parliamentary results of the 9 Constituencies; Nsawam Adoagyiri, Okaikwei Central, Tema Central, Techiman South, Ahafo-Ano North, Ahafo-Ano South West,Ablekuma North, Dome-Kwabenya and Obuasi-East.
The Certiorari Application filed by the NDC is on the basis that the Accra High Court erred in law by refusing their application to be joined as party to the case.
It was the contention of the Accra High Court judge that there was the need to expedite the matter due to the urgency of it since the Courts will be going on Christmas holidays and that MPs-elect would have to be sworn-in by the first week of January.
This piece seeks to look at whether or not the Accra High Court Judge erred in refusing to accept the joinder application of the NDC as this will be the
fundamental question the Supreme Court will be answering tomorrow to determine whether or not to grant the Certiorari application of the NDC.
First of all, a Certiorari is a discretionary remedy granted by a court where the ruling of a court contains an error of law or that the court lacked jurisdiction or even exceeded its jurisdiction.
Under what grounds will a supervisory Court like the Supreme Court grant a Certiorari application to quash the decision of another court below it,in this case, the High Court?
These grounds have been been well established in a litany of cases such as Republic v High Court, Accra; Ex parte Commission on Human Rights and Administrative Justice (Addo Interested Party) [2003 – 2004] 1 SGLR 312 and Republic v Court of Appeal; Ex parte Tsatsu Tsikata [2005-2006] SCGLR 612. The grounds as established in these cases are below;
1. Where there is a clear error of law
2. When a Court lacked jurisdiction to make a ruling.
3. Where the ruling of the court is unreasonable
4. Where the court exceeded its jurisdiction.
The Supreme Court, in deciding tomorrow’s matter, would be applying the above grounds. Let’s then see whether the Certiorari application will be able to satisfy the above grounds for it to be granted in favour of the NDC.
In looking at the first ground,it is our contention that the NDC as a political party was not named as a party in the supporting affidavit of the Plaintiff and as such under what circumstances will they want to be joined as parties to the case? It is, therefore, the discretion of the court to allow them as parties.
Furthermore, granting them the joinder application would mean that the court would have had to give them enough time to prepare their case by allowing necessary processes like service and submission of written submissions.
All this would mean that the case would have to extend beyond 7th January, 2025, thereby leading to these constituencies still not having MPs then. A strict reading of ORDER 4 RULE 5 SUB-RULES 1 and 2B makes joinder applications not as of right as it is within the discretion of the court as the determination of a party as a necessary party is one of discretion and the court is not bound to grant same and such refusal does not occasion injustice as per the circumstances before the court. As such, it is our contention that there has not been any clear error of law on the part of the Accra High Court judge.
Looking at the ground of whether the ruling of the Accra High Court judge was reasonable or not, the judge in his ruling stated that there was the need to ensure that the case to be heard expeditiously as Christmas holidays were in view and also the need for such constituencies to have their MPs by January 7. To add up,a re-collation of the results inures to the benefit of all parties as it gives them the opportunity to be sure of the election results and as such an order that the EC to complete collation of the results will be reasonable as it is the mandate of the EC to do that and the court in granting such an order will only be ensuring that EC completes its work of which a recollation would allow the EC to do so. We therefore contend that the ruling of the High Court Judge was reasonable.
Lastly, on issue of jurisdiction, we do not think that the Accra High Court Judge lacked jurisdiction or even exceeded its jurisdiction as it is clear in our laws that the High Court is the right forum to hear Parliamentary Election disputes.
In conclusion, it is our firm belief that the Accra High Court did not in any way err when it refused the joinder application of the NDC. As such, the Supreme Court would most likely refuse the NDC’s Certiorari application on the basis of the above grounds. We urge the NDC to allow for the swearing in of these MPs and to go to the appropriate forum, which is the court to contest these seats appropriately.
