IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
WEALTH MANAGEMENT COMPANY LTD. - (Defendant/Appellant)
SIC FINANCIAL SERVICES LTD. - (Plaintiff/Respondent)
DATE: 1 ST MARCH 2018
CIVIL APPEAL NO: H1/7/2018
JUDGES: F. KUSI-APPIAH JA (PRESIDING), E. K. AYEBI JA, SIMON G. SUUREBAAREH JA
LAMBERT KERIBA FOR DEFENDANT/APPELLANT
NAOMI N. LARTEY FOR PLAINTIFF/RESPONDENT
This is an appeal against the ruling of an Accra High Court which set aside the defendant/appellant’s statement of defence because in the said statement of defence, defendant/appellant in addition to the plaintiff/respondent, without leave of the court, counter-claimed against two other persons who were not parties to the suit originally. The issue to be resolved in the appeal therefore is when and how Order 12 rule 5 on counter-claim against additional parties vis-à-vis Order 4 rule 5(2) on Joinder of Parties in the High Court (Civil Procedure) Rules, 2004 (C.I. 47) should be invoked.
The plaintiff averred that she is in the business of investment banking. By separate investment agreements, she placed various sums of money for investment with the defendant. Although the investments have since matured, the defendant has failed to pay the principal and the agreed interest thereon despite repeated demands. Per the writ of summons, plaintiff claimed against the defendant:
(a) Recovery of the sum of Five million, Seven hundred and Forty-nine thousand, Six hundred and Seventy-eight Ghana Cedis, Thirty-three pesewas (GH¢5,749,978.33) being the total value of investments placed with the defendant by the plaintiff.
(b) Interest on the sum (a) above at the agreed interest rate on the various investments from the time it became due to date of final payment.
(c) Penal interest on the amounts due at the rate of 7% a month on the various investments from the time it became due to the date of final payment.
(d) Cost including legal fees.
The defendant denied the claim of the plaintiff and charged the plaintiff and two non-parties with fraud perpetrated on her. According to the defendant, she discovered that one Kingsley Awuah-Darko, board chairman of the plaintiff was the founder of both Money Systems International Ltd. and PT Holdings Ltd, also investment companies. To avoid conflict of interest, Kingsley Awuah-Darko caused GH¢3,030,000.00 out of the amount received from the plaintiff to be re-invested in Money Systems International Ltd. at an agreed rate of interest. However, Money Systems International Ltd. paid back a paltry sum after the maturity date. The failure of Money Systems International Ltd. to pay back the whole amount re-invested in her by Kingsley Awuah-Darko, according to the defendant disabled her from being investment worthy.
Despite the default of Money Systems International Ltd., the defendant said she paid GH¢3,598,291.25 being the entire principal invested in her by the plaintiff and part of the accrued interest. What is left according to the defendant is the remaining accrued interest which must be determined through reconciliation of accounts by the parties. It is therefore the case of the defendant that the plaintiff and Money Systems International Ltd. had fraudulent intentions when they entered into the investment agreements with her. And in perpetration of the fraud, they launched this action against her.
This is the basis of defendant’s counter-claim against the plaintiff (original party) and Money Systems International Ltd. and Kingsley Awuah-Darko (non-parties) under Order 12 rule 5 of C.I. 47 for:
(a) Declaration that the conduct of both plaintiff and Money Systems International Ltd. and their officials is fraudulent and plaintiff issued the writ to perpetrate fraud on defendant.
(b) Recovery of an amount of GH¢10,737,699.64 being total value of re-investment as at 31st December, 2015 due and owing by the Money Systems International Ltd. and guaranteed by Kingsley Awuah-Darko.
(c) Interest on the amount in paragraph (b) at the agreed rate from 1st day of January, 2016 till final date of payment.
(d) Penal interest on the re-investment transaction at the agreed rate of five (5) percent from 1st day of January, 2016 till final date of payment.
(e) An order that part of the amount Money Systems International Ltd. is owing under the re-investment transaction be used to set-off any amount under the investment transaction between plaintiff and defendant, and
(f) Costs including legal fees.
In the heading of the statement of defence, the defendant stated the title as commenced by the plaintiff against her and then added Money Systems International Ltd. and Kingsley Awuah-Darko, the non-parties as defendants also. The setting of the heading is this:
SIC FINANCIAL SERVICES LTD. - PLAINTIFF VRS
WEALTH MANAGEMENT COMPANY LTD. – DEFEDANT VRS
MONEY SYSTEMS INTERNATIONAL LTD
KINGSLEY AWUAH-DARKO - DEFENDANTS
Additional to the statement of defence and counter-claim with the title as above, defendant also caused to be issued Notice of Counter-claim under Order 12 rule 5(6) of C.I. 47 directing the two defendants to enter appearance within eight days upon service at the Registry of the High Court (Commercial Division), Accra and then defend the counter-claim, or in default, the court will proceed and pronounce judgment in their absence.
It is this joinder of the two non-parties as appeared in the heading of defendant’s statement of defence and counter-claim which provoked plaintiff’s motion to set aside the said statement of defence. In paragraphs 5 and 6 of the affidavit in support in particular, the plaintiff stated the basis of the application as:
“(5) That in the purported statement of defence, the defendant sought to suo motu join Money Systems International Ltd. and Mr. Kingsley Awuah-Darko as defendants.
(6) That per the rules of court the purported joinder of the other two defendants is improper and vexation (sic) as the defendant should have come to court to seek an order to do so”.
In resisting the application, the defendant averred in the affidavit in opposition that:
“(4) The rules of court allow a defendant at the time of filing his defence to add name of another person, not already a party, to the suit where the defendant has a counter-claim against both the plaintiff and that other person in relation to the same subject.
(5) In such an instance there is no need for the defendant to file an application for joinder except that the person whose name is so added to the suit must be served with the writ of summons together with the defence including the counter-claim.
(6) The defendant/respondent has a valid defence and counter-claim against plaintiff/applicant and same will not be set aside because plaintiff/applicant has concerns with adding of the other person to the counter-claim.
(7) The defendant/respondent’s counter-claim against the plaintiff/applicant and the other two persons is a separate claim even though it is premised on the writ of summons including the statement of claim.
(8) The court has jurisdiction to join a party to a suit and/or strike out (sic) name of the party at any stage of the proceedings, where it is established that the presence of such a party is necessary or unnecessary for determination of the suit”.
In finding merit in the plaintiff’s motion, the court in its ruling stated:
“Clearly defendant’s counsel is wrong about his construction of Order 12 rule 5 on counterclaims. Order 4 Rule 5(2) grants the court the sole power after a suit is filed to join a party suo motu or to join one upon application.
The rule does not allow a party without leave or application to the court to join any person the party thinks has a part to play in the case to join such a person or persons”.
In disagreeing with the defendant, the trial judge fumed at defendant’s counsel thus:
“I take serious view of the stand of learned counsel for defendant who sought stoutly to defendant (sic) his construction on Order 12 rule 5 of what to me is basic law and practice: that is that, one has to seek leave of the court to join a person to a suit. Even the court, which has discretion to join a person to a suit exercises that discretion on restricted compass.
I shall grant plaintiff’s application and strike out the statement of defence”.
The court then struck out the statement of defence of the defendant, gave her leave to file a statement of defence within eight (8) days, after which she is at liberty to apply to join any person or persons she deemed fit. Aggrieved by the ruling, the defendant filed this appeal. The relief sought prayed us to reverse the ruling and restore the statement of defence and counter-claim and also to set aside the cost awarded. The ground of appeal in the Notice of Appeal is:
1. The judge erred in law in setting aside the defence and counter-claim filed by the defendant.
Particulars of Error of Law
(i) The learned trial judge misinterpreted Order 12 rules 5 of C.I. 47 in dismissing the defence and counter-claim;
(ii) In dismissing the defence and counter-claim, the learned trial judge failed to consider the counter-claim as a separate action;
(iii) In dismissing the defence and counter-claim, the learned trial judge assumed the defendant/appellant needed a court order for joinder to file its defence.
No other ground of appeal was filed and argued.
From the record of appeal, the plaintiff/respondent did not file a response to the defendant/appellant’s written submission. The plaintiff/respondent did not also attend court at the hearing of the appeal, although she was served with a hearing notice.
Nonetheless we proceeded to hear the appeal as it is permissible to do so in accordance with rule 24 of the Rules of Court, C.I. 19.
In the introductory paragraph to this opinion I stated that the issue to be resolved in this appeal is when and how to apply to Order 12 rule 5 as against Order 4 rule 5(2) in C.I. 47. Both rules in essence provide for joinder of parties in an existing suit. The written submission of the defendant/appellant endeavoured to do just. I say without any pretense that, the endeavour has merit. To show the difference in application between Order 4 rule 5 and Order 12 rule 5, in relation to the defendant/appellant’s statement of defence and counter-claim, counsel invoked the Latin maxim “generalia specialibus non derogant” as applied in Bonney & Ors. vrs Ghana Ports Authority (No.1) [2013/14] 1 SCGLR 436. The English translation of the maxim is that:
“Whenever there is a general enactment in a statute which if taken in its most comprehensive sense, would override a particular enactment in the same statute, the particular enactment must be operative, and the general enactment must be taken to affect only the parts of the statute to which it may properly apply”.
See Halsbury’s Laws of England (4th Edition) Volume 44 at paragraph 785.
The rationale for the maxim is this: when the legislature has given its attention to a particular subject and made provision for it, the presumption is that a subsequent and general enactment is not intended to interfere with the special provision unless the intention so to do is clearly manifested.
The application of the maxim was reinforced by the Supreme Court in the case of Boyefio vrs NTHC Properties Ltd. [1996/97] SCGLR 531. In section 12(1) of the Land Tittle Registration Law, 1986 (PNDCL 152), it is provided that:
“No action concerning any land or interest therein in a registration district shall be commenced in any court unless the procedures for settling disputes under this law have been exhausted”.
So under the Law, Land Title Adjudication Committee was given jurisdiction to hear disputes concerning land and interest in land in a registration district first before resorting to the High Court on appeal. That provision appeared to have eroded part of the general jurisdiction of the High Court as stipulated in article 140(1) of the 1992 Constitution and repeated in the Courts Act, 1993 (Act 459) section 15(1).
In a case stated to the Supreme Court for interpretation, Acquah JSC (as he then was) held that:
“The law was clear that where an enactment had prescribed a special procedure by which something was to be done, it was that procedure alone that was to be followed. Thus section 12(1) of PNDCL 152 was in consonance with the modern practice of setting up internal tribunal as an institution to have a first bite at disputes arising within that institution before recourse was made to the courts if the matter did not end at the internal tribunal. Where a person has ignored the internal tribunal by resorting to the courts in respect of any such internal dispute, the court would invariably order him to go back to the internal tribunal, if that person had no substantial reason for ignoring the internal tribunal – Tularley vrs Abaidoo  1 GLR 411 SC cited (emphasis mine)”
But the ruling of the trial judge has violated this statement of law as shown hereunder.
Now Order 4 rule 3 of C.I. 47 provides:
Joinder of Parties
“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 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 subrule, be made a defendant.
Then Misjoinder and non-joinder of parties. Rule 5(1) No proceedings shall be defeated by reason of misjoinder or non-joinder of any party; and the court may in any proceeding determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the proceedings.
(2) At any stage of proceedings the court may on such terms as it thinks just either of its own motion or on application
(a) order any person who has been improperly or unnecessarily made a party or who for any reason is no longer a party or a necessary party to cease to be a party;
(b) order any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the proceedings are effectively and completely determined and adjudicated upon to be added as a party.
(3) No person shall be added as a plaintiff without that person’s consent, signed in writing or in such other manner as may be authorized by the Court.
(4) Any application by any person for an order under subrule (2) to add that person as a party shall be made by motion supported by an affidavit showing the person’s interest in the matter in dispute before or at the trial.
(5) When an order is made under subrule (2), the writ shall within fourteen days after the making of the order or such other period as may be specified in the order, be amended accordingly and indorsed with a reference to the order in pursuance of which the amendment is made and with the date on which the order for the amendment is made.
(6) Where under this rule a person is ordered to be made a defendant, the person on whose application the order is made shall procure it to be noted in the Cause Book by the Registrar and after it is so noted,
(a) the amended writ shall be served on the person ordered to be made a defendant, and
(b) the defendant so served shall thereafter file an appearance.
(7) A person ordered under this rule to be added as a party shall not become a party until the writ is amended in relation to the person under this rule and, if the person is a defendant, the writ has been served on the person”.
In Order 12 of C.I. 47, the heading is “Counterclaims”. In rule 1 of the Order which is headed “counterclaim against the plaintiff”, it is provided that a defendant who has a claim or alleges that he is entitled to any relief or remedy against a plaintiff in an action in respect of any matter, whenever and however arising, may, instead of bringing a separate action, make a counterclaim in respect of that matter. The defendant makes the counterclaim as an addition to the statement of defence to the claim of the plaintiff against him.
Further in rule 5 of Order 12 headed “Counterclaim against additional parties”, it is enacted as follows:
“5(1) Where a defendant who makes a counterclaim against the plaintiff alleges that any other person whether a party to the action or not, is liable to the defendant together with plaintiff in respect of the subject-matter of the counter-claim; or claims against such other person any relief relating to or connected with the original subject-matter of the action, the defendant may join that other person as a party against whom the counterclaim is made.
(2) Where a defendant joins a person as a party against whom the defendant makes a counterclaim, the defendant shall add that person’s name to the title of the action and serve the person a copy of the counterclaim.
(3) Where a copy of the counterclaim is to be served on a person who is already a party to the action, the defendant shall serve it within the period within which, under these Rules the defendant shall serve on the plaintiff the defence to which the counterclaim is added.
(4) Where a copy of the counterclaim is to be served on a person who is not already a party to the action, a copy of the writ and of the pleadings served in the action shall be served with the counterclaim.
(5) The provisions of these Rules relating to service of process, filing of appearance and default of appearance shall apply to the counterclaim and the proceedings arising from it as if
(a) the counterclaim were a writ and statement of claim and the proceedings arising from it, an action and
(b) the party making the counterclaim were a plaintiff and the party against whom it is made, a defendant in that action.
(6) A copy of a counterclaim required to be served on a person who is not already a party to the action shall be indorsed with a notice addressed to that person,
(a) stating the effect of Order 9 rules 1 and 2 as applied to subrule (4) of this rule;
(b) specifying the registry at which that person shall file appearance to the counterclaim; and stating that the person may obtain forms of the requisite documents from that registry and stating how the person may do so.
(7) A person on whom a copy of a counter-claim is served under subrule (2) shall, if the person is not already a party to the action, become party to it as from the time of service, with the same rights in respect of defence to the counterclaim and otherwise as if the person had been duly sued in the ordinary way by the person making the counterclaim.
(8) A person who is not already a party to the action shall file appearance to the counterclaim.
In every civil litigation there is a plaintiff or a number of plaintiffs and a defendant or a number of defendants. Thus in Benyarko vrs Mensah  2 GLR 404 at 410, Kpegah J (as he then was) observed that:
“Litigation by its very nature presupposes the existence of a dispute between two persons or parties. It is therefore natural that there must be before the court two persons or parties to enable adjudication of the matter to be effectively carried out”.
While it is the plaintiff who initiates the action, the defendant is the person against whom the action is brought. In initiating the action, several persons may come together as plaintiffs and such plaintiffs may claim against several persons as defendants. This would be the case where all the claim relate to or arise out of the same or series of transactions and the parties have an interest in the common question of law to be resolved in the action.
But it may so happen that in instituting the action the plaintiff(s) may have inadvertently omitted to join person(s) or defendant(s) or may have joined person(s) who ought not to have been joined to the action at all. In either case, the plaintiff(s) must take steps to ensure that the proper parties for the resolution of the dispute are before the court. The provisions in Order 4 on joinder of parties provide remedy to a plaintiff in that dilemma.
On the part of defendant(s), he or they may not only dispute the claim of the plaintiff(s). A counterclaim is a convenient procedure that enables a defendant to make claims against the plaintiff for determination alongside the claim of the plaintiff (Order 12 rule 1).
Further, the defendant(s) may rope in additional defendant(s) to answer plaintiff(s)’ claim with him/them or all alone (Order 12 rule 5). While Order 4 made general provisions, Order 12 rule 5 made specific provisions for all those situations of joinder or misjoinder of parties as well as causes of action with the sole purpose that:
“All such remedies whatsoever as any of the parties thereto may be appear to be entitled to in respect of any legal or equitable claim properly brought forward by them in the cause or matter, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided”.
In opening his submission in this appeal, counsel for the defendant/appellant posed the question “whether the defendant needed a court order for joinder to file the defence with counterclaim against plaintiff and two other persons who originally are not parties to the action”. Indeed that is the issue to be determined. For as appears on page 8 of the record of proceedings, the defendant/appellant in his statement of defence, counterclaimed not only against the plaintiff/respondent but also against two other persons who were not parties to the suit originally.
In initiating an action as I indicated above, the plaintiff has absolutely discretion in determining the parties, especially who as a defendant he has a cause of action against. Defendant does not have that luxury in a statement of defence to bring in a person as plaintiff without his written consent. The offending part of the defendant/appellant’s statement of defence and counterclaim is the claim made against two additional persons who were not original parties to the suit. It is not the usual scenario/practice we see in the courts, hence the application to set it aside which the trial judge upheld.
The usual practice in the court on joinder of parties as well as causes of action is provided for in Order 4 of C.I. 47. As regards joinder of parties the Rules of Court recognized two situations – namely joinder without the leave of the court and joinder with leave of the court. In initiating an action the plaintiff determines who should join him to sue and those to sue and make them parties to the suit. The court has no hand in such determination. Even after filing the writ of summons and before pleadings are closed, the plaintiff can amend the title of the suit without recourse to the court. In the Rules of Court, joinder of parties without leave of the court is allowed in rule 3 of Order 4 of C.I. 47.
The second situation is where the court is seized with the suit and any of the existing parties, be it plaintiff or defendant desires to bring in a new party or even remove an existing party. In this case leave of the court must be sought as mandated in rule 5 of Order 4 generally. I have quoted the full text of the rule already.
In rule 5(2), the court has the discretion to order any person improperly or unnecessarily made a party to cease to be a party. Again, the court can order any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the proceedings are effectively and completely determined and adjudicated upon to be added as a party. In both cases, the court can in the exercise of its discretion make the order suo motu or upon application either by a party to the suit or an outsider/intervener.
In subrule (3) of rule 5 it is forbidden to join a person as a plaintiff without his consent signified in writing or in a manner authorized by the court. But an application by a person such as an intervener under subrule (2) of rule 5 to be joined as a party is mandatorily required to be a motion supported by an affidavit showing the person’s interest in the matter in dispute at the trial.
In reference to the gravemen of the plaintiff/respondent’s complaint in paragraphs (5) and of the affidavit in support of the motion to set aside the statement of defence and counter-claim of the defendant/appellant, this is the rule of court which has been infringed by the defendant/appellant. As it is evident from the ruling of the trial court, he agreed with the submission of the plaintiff/respondent that the defendant/appellant erred when she sought to join additional persons as parties to the suit without leave of the court. The trial judge went on to remind the defendant/appellant that even the court exercises its discretion in a restricted compass.
Clearly, the whole tenor of the trial judge’s ruling is based on Order 4 of C.I. 47 particularly rule 5 subrules (2) and (4). But Order 4 of C.I. 47 basically made provisions for joinder of causes of action and parties. On the other hand, Order 12 provides for counterclaims. Specifically rule 5 of Order 12 under which defendant/appellant filed her statement of defence and counterclaim provided for the manner in which a defendant will make a claim not only against the plaintiff as in rule 1 but also how a defendant will make a claim against additional parties in the same action.
The trial judge however failed to appreciate that Order 4 rule 5 and Order 12 rule 5 provide for different situations on joinder of parties. He faulted the counsel for defendant/appellant for the “construction” he put on Order 12 rule 5. Each Rule of Court has a purpose. The trial judge however failed to demonstrate in what circumstances the rule could be invoked and applied. He neither supported his refusal to consider the defendant/appellant’s process in terms of the rule and apply it with any authority.
However, the case of Jescan Construction Ltd. vrs Hippo Ltd. & Or. and Hippo Ltd vrs
Jescan Construction Ltd., Kimathi M. Dake and Merchant Bank (Gh) Ltd.  94 GMJ 64, which is on all fours with the present complaint of the plaintiff/respondent was brought to the attention of the learned judge. Yet he decided to rule to the contrary. At page 91, this court per Gertrude Torkornoo, JA held that:
“I find it noteworthy that the framers of the rules of court on joinder at counterclaim level did not include in Order 5 rules (1) and (2) [rather Order 12 rule 5 (1) & (2)] the words “on application” or “with leave of court”. I am satisfied that if it had been the intention of the legislators that prior to commencing a counterclaim action against a party who was not originally a party to the suit, the counterclaimant ought to first seek leave of court, they would have been explicit in this direction. This is especially so when Order 12 is the specific Order relating to counterclaims”.
In that dictum, her Ladyship put a construction on subrules (1) and (2) of rule 5 of Order 12 as a specific legislation for a specific purpose. In essence, the rule permitted the defendant to plead a counterclaim against the plaintiff along with some other person, not already a party to the action. That other person is described as “defendant to the counterclaim” in the title of the action. The condition precedent to making such a plea is that the defendant must allege that such other person is liable to the defendant along with the plaintiff in respect of the subject-matter of the counterclaim or that claim in the counterclaim relates to or is connected with the subject-matter of plaintiff’s claim.
In the instant case, the defendant/appellant in her statement of defence and counterclaim, made a claim against the plaintiff/respondent and went on to allege that Money Systems International Ltd. and Kingsley Awuah-Darko are liable to her in respect of the plaintiff’s claim against her. So the conditions precedent to the invocation of the rule has been satisfied in the defendant’s statement of defence and counterclaim. And in filing the statement of defence and counterclaim, the defendant/appellant complied with the directive in subrules (2), (4) and (6) by adding the names of the two defendants not already a party to the suit and serving them with a copy of the counterclaim, the original writ and the pleadings in the suit and directing them to the Registry where they must enter an appearance. In short, the defendant/appellant’s statement of defence and counterclaim as filed has fully complied with the specific Rules of Court.
In compliance with subrule (2) of rule 5 of Order 12, the title of the action with a counterclaim against additional parties is shown thus:
SIC FINANCIAL SERVICES LTD. - PLAINTIFF VRS
WEALTH MANAGEMENT CO. LTD. – DEFENDANT
(by Original Action)
WEALTH MANAGEMENT CO. LTD. – PLAINTIFF
1. MONEY SYSTEMS INTERNATIONAL LTD
2. KINGSLEY AWUAH-DARKO - DEFENDANTS (by Counterclaim)
See the Supreme Court Practice, 1997 Vol. 1 at page 195, paragraph 15/3/2 and Jessan Construction Ltd. vrs Hippo Ltd. & Ors, cited supra.
As far as possible the defendant/appellant in the statement of defence and the counterclaim she filed against the plaintiff and additional parties, has shown this format in the title of the action with only the omission of herself as the plaintiff in the counterclaim. But the title of the action as shown, should have informed the trial judge the applicable rule is not anything under Order 4 on joinder of causes of action and parties. The trial judge therefore gravely erred when he sustained the plaintiff/respondent’s application to set aside the defendant/appellant’s statement of defence. He failed to appreciate the import of Order 12 rule 5 and the fact that it is a specific provision purposely crafted to govern counterclaims against additional parties by a defendant in an existing action.
That apart, reliance on Order 4 rule 5(2) to set aside the defendant/appellant’s statement of defence clearly overlooked the unambiguous provision in rule 5(1) of the same Order 4 on misjoinder and non-joinder of parties. It is that no proceedings shall be defeated or frustrated by reason of misjoinder or non-joinder of any party. So as the trial judge opined, if contrary to the rules, defendant/appellant joined the additional parties without leave of the court, there are two options opened to the court – either to strike out the additional parties or to proceed with the case and determine the issues or questions in dispute as it affects the rights or interests of the parties to the proceedings.
It has to be emphasized also that every counterclaim action is a cross-action or an independent and separate action from the plaintiff’s claim. See subrule 5 of rule 5 of Order
So if the trial judge was of the view that the counterclaim against the additional parties would embarrass the plaintiff, the rules allow the court to order separate trials. However, contrary to rule 1(1) of Order 81, the trial judge placed form over substance, although the form used by the defendant/appellant is in compliance with the rules – see Republic vrs High Court, Accra; Ex parte Allgate Co. Ltd. [2007/08] 2 SCGLR 1041. Over and above, the ruling of the trial court undermined the overriding policy objective of the Rules of Court in C. I. 47. In Order 1 rule 2 it is stated that:
“These Rules shall be interpreted and applied so as to 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 such matter avoided”.
It is patently clear from reading rule 5 of Order 12 that, the rule was carefully crafted to accord with this fundamental policy objective of the Rules of Court. But the trial judge failed to appreciate it. After setting aside the statement of defence of the defendant/appellant, the trial judge gave a directive which according to him is the appropriate remedy. That remedy is nothing more than the procedure in Order 4 rule 5 in particular. But as demonstrated by the defendant/appellant compliance with that directive will not only delay the trial but will also cost her thrice the filing fee of GH¢10,430.00. In the result the policy objective of the Rules would not have been achieved.
The ruling is clearly contrary to the specific and express provision of Order 12 rule 5 on counterclaim against additional party/parties. The appeal is therefore allowed. The ruling of the trial court dated 8th April 2016 is hereby reversed, and the statement of defence and counterclaim of the defendant/appellant is restored.
E. K. AYEBI
(JUSTICE OF APPEAL)
F. KUSI-APPIAH I agree F. KUSI-APPIAH
(JUSTICE OF APPEAL)
S. G. SUUREBAAREH I also agree S. G. SUUREBAAREH
(JUSTICE OF APPEAL)