FBN BANK GHANA LIMITED vs ROE COMPANY LIMITED & RHODA OBIRI YEBOAH & DAISY OBIRI YEBOAH
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (GENERAL JURISDICTION DIVISION, COURT 6)
    ACCRA - A.D 2019
FBN BANK GHANA LIMITED - (Plaintiff/Respondent)
ROE COMPANY LIMITED & RHODA OBIRI YEBOAH - (Defendant/Respondent)
DAISY OBIRI YEBOAH - (Applicant)

DATE:  15TH JULY, 2019
SUIT NO:  GJ/1567/2016
JUDGES:  HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO
LAWYERS:  RICHMOND NUMBO SAAKA FOR THE PLAINTIFF
RICHARD AMOFA FOR THE DEFENDANTS
VICTOR KWADJOGA ADAWUDU FOR THE APPLICANT
APPLICATION FOR JOINDER PURSUANT TO ORDER 4 RULE 5(2) OF CI 47

i. Introduction:

[1] By a Motion on Notice filed at the registry of this Court on April 4, 2019, the Applicant, Daisy Obiri Yeboah is praying this Court for an order under Order 4 Rule 3 of the High Court (Civil Procedure) Rules, 2004 (CI 47) for her to be joined as a Defendant in this suit. The grounds for the application are catalogued in an initial 17 paragraph affidavit deposed to by Counsel for the Applicant, Mr. Adawudu supporting the motion paper and a further Supplementary Affidavit of one Jerry Asem, a Law Clerk at the Applicant’s Counsel’s office.

 

[2] It is enacted in Order 4 Rule 3 of CI 47 titled Joinder of Parties as follows:

3. (1) Subject to rule 4 of this Order, two or more persons may be joined together in the same action as plaintiffs or as defendants without leave of Court, where

(a) if separate actions were brought by or against each of them, some common question of law or fact would arise in all the actions: and

(b) all rights to relief claimed in the action whether they are joint, several or in the alternative are in respect of or arise out of the same transaction or series of transactions.

(2) Where the plaintiff in any action, other than a probate action, claims any relief to which any other person is entitled jointly with the plaintiff, all persons so entitled shall, subject to the provisions of any enactment and unless the Court gives leave to the contrary, be parties to the action and any of them who does not consent to being joined as a plaintiff shall, subject to any order made by the Court on an application for leave under this sub rule, be made a defendant.

(3) Where relief is claimed in an action against a defendant who is jointly liable with some other person, not severally liable, that other person need not be made a defendant to the action; but where persons are jointly, but not severally liable under a contract and relief is claimed against some but not all of those persons in an action in respect of that contract, the Court may, on the application of any defendant to the action, by order stay proceedings in the action until the other persons who are liable are added as defendants.”

 

The Plaintiff and the Defendants are opposed to the application and have therefore urged the Court to dismiss the application as unmeritorious and award cost against the Applicant.

 

ii.         Arguments for and against the grant of the Application:

[3] In moving the application learned Counsel for the Applicant, Mr. Victor Kwadjoga Adawudu relied on the depositions as contained in the affidavits in support of the application and the attached exhibits. The pith and substance of the prayer is that the Applicant is the wife of the late Emmanuel Obiri Yeboah until his demise. According to the Applicant during the subsistence of the marriage they jointly acquired a parcel of land and contributed to the construction of a home, which according to her was the matrimonial home and known as No. 10/399, New Yellow Bus Stop, Ashalley Botwe, Accra. The Applicant has further deposed that she acquired a parcel of land, which was registered in the names of the couple and developed as a commercial property as H/No. 965, Block 17, near Victoria Plaza, Ashalley Botwe, Accra. The Applicant attached as Exhibit DOY1, an Indenture to support the deposition.

 

[4] The Applicant has further deposed that after developing the Commercial property she started operating a business by the name E-DOB Enterprise from the premises and she has since had possession. The Applicant attached as Exhibit DOY 2, a copy of the Incorporation Certificate. According to the Applicant she co-habited with the late Obiri Yeboah until she left to the United States of America due to some misunderstanding, which ensued, between them. She also attached as Exhibit DOY 3, the Certificate of Marriage.

 

[5] It is the case of the Applicant that upon the demise of her husband she came to Ghana to find out that her late husband “purportedly married the 2nd Defendant under some strange circumstances” although her marriage to the deceased was still subsisting. According to the Applicant once she became aware of the development, she instructed Counsel to issue a writ of summons for declaration that the “properties numbered H/No. 10/399, Yellow Bus Stop, Ashalley Botwe and No. 965, Block 17, Ashalley Botwe are joint properties” of herself and the late husband. That action is pending before the Court in Suit No. GJ 1070/18.

 

[6] It is the further case of the Applicant that while that matter is pending it has come to her attention that the Defendants/Respondents before the Court used the property as a mortgage to obtain a loan from the Plaintiff. According to the Applicant if the Plaintiff/Respondent had conducted due diligence from the proper custody, it will have known the actual owners of the property. The Applicant says her prayer to be joined as a party is necessitated by the Plaintiff’s claim for the judicial sale of the properties because though she has an interest in “property No. 965 Block 17 as a joint owner” but her consent was not sought before the grant of the loan.

 

[7] It is the further case of the Applicant that her interest in the said property will be affected negatively should the Court not grant the instant application she is seeking from the Court. According to the Applicant should the Court grant the Plaintiff’s reliefs, the disposition of the property she has interest in shall affect her pocket. Counsel cited the IN RE: PRESIDENTIAL ELECTION PETITION, NANA AKUFFO ADDO ET AL v. JOHN DRAMANI MAHAMA & ANOR. (2013) SCGLR (SPECIAL EDITION) and submitted that the Supreme Court at page 15 of the report decided and stated who is a necessary party in a suit. In this case according to Counsel the Applicant is a necessary party because she has an interest in the property the Plaintiff is seeking an order for judicial sale for.

 

[8] Counsel for the Applicant further submitted that the rules of Court provides that at any stage of the proceedings a party may be joined and therefore filing the application at this time is not late. According to Counsel it is only when the Applicant is joined that the Court will know whether the property is a joint property or the property of the deceased. Counsel submitted that based on all of the facts “we think and believe that this is a proper suit for joinder”.

 

[9] Turning to the affidavit in opposition and the contention that her intervention at this stage to not warranted, Mr. Adawudu submitted that the Applicant has chosen not to be indolent because equity helps the vigilant. He therefore prayed the Court to grant the application. The Court notes that the Supplementary Affidavit filed on July 1, 2019 was to specifically respond to the affidavit in opposition filed by the Plaintiff.

 

[10] In the affidavit in opposition filed by the Plaintiff it is averred that the Applicant’s prayer for joinder as a Co-Defendant is brought in utter bad faith because it seeks to depart from the Plaintiff’s case. According to the Plaintiff the Applicant cannot have capacity to be jointly and severally liable for the 1st Defendant’s indebtedness to the Plaintiff since she is not an Officer or Director.

 

[11] According to the deponent of the affidavit in opposition the residential property used as the mortgage deed is the property of the deceased Emmanuel Obiri Yeboah because the Indenture executed was between Numo Cephas Ashale Nikoi, Ebenezer Nikoi Kotei, Nii Amasa Nikoi, Nii Emmanuel Anum Nikoi and Emmanuel Obiri Yeboah. A copy of the Land Certificate was attached as Exhibit MA3”. The Plaintiff also tendered a copy of the Mortgage as Exhibit MA2”.

 

[12] The Plaintiff’s other ground of opposition is that the property described as H/No. 10/399, Yellow Bus Stop, Ashalley Botwe and identified by the Applicant in support of the instant application is not the subject matter before this Court. To the Plaintiff therefore the dispute before this Court is not to determine the rightful spouse of the late Emmanuel Obiri Yeboah as between the Applicant and the 2nd Defendant.

 

[13] In responding to the arguments of the Applicant, Counsel for the Plaintiff Richmond Numbo Saaka submitted that his client is vehemently opposed to the application. Counsel relied on all of the depositions in the affidavit in opposition and prayed the Court to dismiss the application because it is unfounded, misconceived and unwarranted.

 

[14] Counsel submitted that the Applicant is not a necessary party to the suit because the claim is for recovery of money. According to Counsel, the 2nd Defendant and the deceased Emanuel Obiri Yeboah as directors executed a guarantee(s) and also signed a mortgage deed to the Plaintiff for a facility advanced to them. Based on the pleadings, Counsel submitted that the issues set down by the parties and adopted by the Court do not include whether the mortgaged properly is a joint properly.

 

[15] Further, Mr. Numbo Saaka submitted that the Applicant has not demonstrated that she contributed to the construction of the property she says she is a part owner as all the documents presented to the court show that it is the property of the deceased Emmanuel Obiri Yeboah. According to Mr. Numbo Saaka the whole application is misconceived because the order for the sale of the property is an alternative claim only because the Court could refuse same. To that extent Counsel submitted that even if the alternative relief is granted the rules of Court permit the Applicant a relief and so she does not have to be a party to the suit.

 

[15] Mr. Richard Amofa for the Defendants who did not file any affidavit in opposition was only allowed to make submissions based on the law. Counsel submitted to the Court that the Defendants fully associate themselves with the submission of the Plaintiff but wish to add that it is the nature of the claim that matters and not how a party wishes to frame the question to the Court. Counsel cited the Supreme Court case of SAM (No.1) v. ATTORNEY GENERAL [2000] SCGLR 104 to support the submission. According to Mr. Amofa based on the pleadings in this case, the Applicant is not a necessary party and therefore the Court ought to refuse the application. He like Mr. Numbo Saaka prayed the Court to dismiss the application.

 

The Court’s Opinion & Analysis:

[16] I now proceed to consider the application and I start off by stating that the fundamental question to be answered by the Court based on the pleadings is whether or not the ownership of the houses identified by the Applicant in this application form part of the issues in this suit?

 

[17] I recognize that by the true and proper interpretation of Order 4 Rules 3 A and 5(2) of CI 47, an application for joinder shall be granted where the presence of the party would ensure that all matters incidental to the proceedings were effectively and completely determined. The policy rationale is to avoid multiplicity of suits. It follows, therefore, that where the presence of the party to the suit would not assist the court in any way to completely and effectually adjudicate the issues in controversy or where the court can conveniently or adequately deal with the case without the party, the application to be joined as a party ought to fail.

 

[18] Further, in my view the overriding theme running through the rules of procedure (Order 4 rule 5(2) (a and b), is that the presence of a necessary party is to ensure that all “matters in dispute” are effectively and completely determined and adjudicated upon by the court. The true ambit of the phrase “matters in dispute” in my respectful view is a question of both fact and law to be decided by the court.

 

[19] It is instructive and worth noting that many of the cases on joinder in our jurisprudence were decided based on the old Order 16 Rule 11 which wording was similar to the present rule. I note that the Courts have not always agreed on the test to be applied and have differed over the grounds for joining a person whose presence is necessary for the effectual determination of a matter. My read of the earlier cases inform me that two legal positions have over the years been articulated. The two positions can be referred to as narrow and wide. While such cases as: (i) APPENTENG v BANK OF WEST AFRICA LTD. (1961) GLR 81; (ii) BONSU v BONSU (1971) 2 GLR 242; and (iii) ZAKARI v PAN AMERICAN AIRWAYS (1982-83) GLR 975 can be said to illustrate the narrow view. Other cases such as USSHER v DARKO (1977) 1GLR 476 (Court of Appeal) and COLEMAN v SHANG (1959) GLR 389 in my view represent the wide position.

 

[20] In USSHER v DARKO (SUPRA) for instance Apaloo JA (as he then was) stated and explained that there were no such fixed rules for a joinder of a party in a joinder application. He stated in Holding 1:

“The jurisdiction of a court to join a party to an action to avoid multiplicity of suits under Order 16 r 11 might be exercised at any stage of the proceeding, so long as anything remained to be done in the action …..whether the application should be acceded to or denied, was a matter for the exercise of the trial judge’s discretion and save that such discretion must be exercised judicially and in a manner conformable with justice, no fixed rules existed as to when and how it should be exercised.” (emphasis added)

 

[21] In APPENTENG v BANK OF WEST AFRICA (SUPRA) on the other hand Ollennu, J (as he then was) stated that “In an application for joinder, the most important question which the court has to answer is: would the joinder of the party enable the court effectually and completely to adjudicate upon and settle all questions involved in the cause? If it would, the application should be granted; if it would not, the application should be refused.”

 

[22] Also, in ZAKARI v PAN AMERICAN AIRWAYS INC. (SUPRA) Wiredu, J. (as he then was) followed the narrow path when after stating the general rule, added yet another test and explained in holding 2 as follows:

“Another test would be whether the order if granted would raise any triable issue between the plaintiff and the party sought to be joined. If not, the only proper order to make was to refuse the joinder where the application was by the defendant under Order 16r11.”

 

[23] More recently, in SAM (No.1) v. ATTORNEY GENERAL SUPRA and APRATWUM MANUFACTRING CO. LTD. v. DIVESTITURE IMPLEMENTATION COMMITTEE [2009] SCGLR 692 the Supreme Court re-stated what to my mind is the USSHER v DARKO (SUPRA) path that anyone whose presence before the Court is necessary or is to ensure that the dispute is effectively and completely determined and adjudicated upon is a necessary party and ought to be added as a party.

 

[24] In my respectful opinion, based on the law another factor, which ought to engage the attention of a Judge when considering an application for joinder, is the information contained in the pleadings filed and the reliefs before the Court. This is because the Statement of Claim usually contains all the facts or background information for the resolution of the suit.

 

[25] From the above jurisprudential review, it is plain that whereas the judges who belong to the wider school of thought advocate that the court has the unfettered discretion in the matter and that the judge’s discretion ought to be exercised in a manner which conforms to justice and not to be restricted to any fixed rule of thumb, those of the narrow school of thought, on the other hand, adhere to the principle that there should be a demonstration that the order for the joinder if granted should raise issues to be tried between the applicant and the person sought to be joined.

 

iv. Conclusion & Disposition:

[26] In my opinion, the overriding factor for my consideration is whether the party to be joined is making any claim of interest or has a right in the subject matter of the suit and/or that the party who wishes to be joined to a suit either at the initiation of the suit or joined subsequently as in this case has any nexus to the claim before the Court and/or some personal interest in the subject matter of the suit before the Court.

 

[27] Based on all of the above, and in applying the general rule to the claim before the Court; in my opinion, there is no proper basis to join the Applicant as a party to this suit based on the claim before the Court. The claim before the Court’s only nexus to the Applicant is the alternative claim by the Plaintiff stated as:

“Or in the Alternative:

An order for the judicial sale of 2nd Defendant’s residential property described as Property No. 965 Block 17 at Ashalley Botwe near Victoria Plaza International Hostel Dome, Accra in satisfaction of any portion of amount of Gh236,871.00 together with any land/or all sums that shall become due to Plaintiff under the credit facility Plaintiff granted to 1st Defendant which was guaranteed by 2nd Defendant”.

 

[28] In my view the alternative claim by the Plaintiff alone is not enough to make the Applicant a necessary party to this suit. In my view her presence shall not assist this Court to effectually and effectively dispose of all the matters in dispute in this case based on the issues for determination. From the pleadings and the claim endorsed on the Writ of Summons the main claim before the Court is for the recovery of the sum of Gh236.871.00 being the cumulative indebtedness of the 1st and 2nd Defendants in respect of a credit facility advanced by the Plaintiff to the 1st Defendant.

 

[29] While it is true that by paragraph 8 of the Statement of Claim, the Plaintiff averred that property described as residential property on Plot No. 965, Block 17 at Ashalley Botwe near Victoria Plaza International Hotel Hostel, Dome was mortgaged as the security for loan, to my mind that on its own does not make the property the subject matter of the suit. I agree with Learned Counsel for the Plaintiff/Respondent that if anything at all the Applicant can exercise her right under Order 48 of C.I. 47 should the Plaintiff/Respondent obtain judgment for the alternative claim and if the property is attached.

 

[30] Based on all of the above and having given active consideration to the application; including critically studying the pleadings filed in this case and the nature of the reliefs sought; I have no slightest doubt in my mind that the Court can proceed to hear this case to finality without the presence of the Applicant to the suit. The application therefore fails and it is so DISMISSED. Costs to the Plaintiff/Respondents assessed at Gh1,500.00 to the Plaintiff & Gh1000.00 to the Defendants.

 

 

1. APPENTENG v BANK OF WEST AFRICA LTD. (1961) GLR 81

2. BONSU v BONSU (1971) 2 GLR 242

3. ZAKARI v PAN AMERICAN AIRWAYS (1982-83) GLR 975 

4. USSHER v DARKO (1977) 1GLR 476 (Court of Appeal) 

5. COLEMAN v SHANG (1959) GLR 389 

6. SAM (No.1) v. ATTORNEY GENERAL [2000] SCGLR 104

7. APRATWUM MANUFACTRING CO. LTD. v. DIVESTITURE IMPLEMENTATION COMMITTEE [2009] SCGLR 692