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. 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. Ruling of the Court • Undoubtedly, the fact that the Supreme Court has the original and exclusive jurisdiction to interpret and enforce the Constitution cannot be over-emphasised. • Consequently when the question arises as to the interpretation of a provision of the Constitution, it is imperative for a lower court to stay proceedings and to state a case for the consideration of the Supreme Court. (Article 130(2) of the 1992 Constitution). • However, the submission of defendant’s counsel is not the correct position of the law. It is not correct that once it is alleged that the Constitution is breached, any action should be started at the Supreme Court for constitutional interpretation or, if it is at the lower court, a reference should be made to the Supreme Court. • As a matter of law, the lower court is only obliged to refer a case to the Supreme Court for interpretation in terms of article 130(2) of the 1992 Constitution where in the determination of a claim before a court an issue of interpretation of a provision of the Constitution arises or where the validity of a law vis-a-vis the Constitution arises. • Unless the words of an article of the Constitution are imprecise and ambiguous, an issue of interpretation does not arise. The words in article 94(1) are not imprecise and/or ambiguous to necessitate an interpretation of the Constitution by the Supreme Court. • It is a very unfortunate and untenable legal submission from Counsel of the 2ndDefendant that a political party’s laws do not form part of the laws of Ghana. • Article 42 of the 1992 Constitution guarantees that every citizen of 18 years or above and of sound mind has the right to be registered and vote in public elections and referenda. • Article 55(2) of the 1992 Constitution has equally bestowed on every citizen of Ghana of voting age the right to join a political party. • Article 55(5) of the 1992 Constitution further requires that the internal organisationof a political party shall conform to democratic principles and with the tenets of the Constitution. This is therefore a constitutional parameter from which the NDC or any political party in the Republic for that matter cannot be excluded. Procedural Matters The Court held that there were certain procedural errors made by Counsel for the Applicant. • The Applicant filed a Conditional Appearance and then went ahead to file the application for dismissal. This was wrong in law. It is not permissible for a defendant who has entered a Conditional Appearance to move the Court to have the writ set aside because he has a legal defence. Counsel should therefore have entered an Unconditional Appearance. • Secondly, the Applicant did not state which rule of court the application was premised on even though it is generally accepted that every application/motion filed at the High Court must be premised on a known rule of procedure. When learned counsel was asked for clarification as to the rule under which the application is brought, he informed the court that ’the application is hybrid’ but he thinks it is based on Order 11 Rule 18(1)(b). The Court held that even it could have struck out the application based on procedural errors, the Court was of the opinion that the nature of this matter and the contention of the parties made it necessary to consider the merits or otherwise of the application.The Court therefore went ahead to deal with the merits of the Application. Relevant Provisions for Ease of Reference NDC Constitution (as amended in 2010 and 2014) Article 43(9)(a) A member shall not be qualified to contest primaries for any Parliamentary seat if he is disqualified under national electoral laws from contesting for any parliamentary seat. Article 43(10) The National Executive Committee shall issue guidelines regarding the election of Parliamentary candidates based on the provisions of this Article. Guidelines for the Elections of the NDC Parliamentary Candidates for the 2016 Parliamentary Elections Section B QUALIFICATION A person wishing to contest to be a parliamentary candidate of the party must: 1. be a citizen of Ghana, who has attained the age of 21 years; 2. be a card-bearing member of the party who has paid party membership dues; 3. be a known and active member of a branch of the party in the constituency; 4. not be a member of any other political party; 5. be qualified in accordance with the 1992 National Constitution to be elected as Member of Parliament. Section C DISQUALIFICATION A member shall not be qualified to contest primaries for any parliamentary seat if he a. is disqualified under national electoral laws from contesting for any parliamentary seat; b. is not an active member of the party at the constituency level for four years immediately preceding the date of filing the nomination; c. is for any reason disqualified from being a party member as spelt out under Article 8 of the party’s constitution; d. fails to meet the requirements for the election of Member of Parliament under Article 94 of the 1992 Constitution of Ghana. 1992 Constitution of Ghana Article 94(1) e. Subject to the provisions of this article, a person shall not be qualified to be a Member of Parliament unless ‘He is a citizen of Ghana has attained the age of twenty-one years and is a registered voter’. Article 55(5) The internal organisation of a political party shall conform to democratic principles and its actions and purposes shall not contravene or be inconsistent with this Constitution or any other law. Story by Kweku Antwi-Otoo/Onua FM/tv3network.com