IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2017
E –WORLD SOLUTIONS LTD, COLONEL ELVIS KWESI MENDS, DESMOND DICKSON AND GABRIEL DAIS - (2ND Defendant/Appellant)
MERBAN ASSET RECOVERY TRUST - (Plaintiff/Respondent)
DATE: 23RD FEBRUARY, 2017
CIVIL APPEAL NO: H1/132/2015
JUDGES: E. K. KANYOKE J.A. (PRESIDING), K. A. ACQUAYE J.A., S. DZAMEFE J.A.
MR. PETER ZWENNES FOR THE 2ND DEFENDANT/APPELLANT
MR. ROBERT PAPPOE PLAINTIFF/RESPONDENT
ACQUAYE, J. A.
This appeal is against the refusal of a High Court in Accra to grant an application to join one Fred Harding Amoo to the suit as a defendant.
The matters preceeding the application were that the plaintiff/respondent issued a writ of summons against four defendants claiming the recovery of the sum of Gh¢171,313.63 together with interest being overdraft facility granted the 1st defendant and guaranteed by the 2nd, 3rd and 4th defendants.
The plaintiff/respondent also claimed an order for the judicial sale of 2nd defendant/appellant’s mortgaged property as security for the facility.
In his defence the 2nd defendant/appellant denied the claims of the plaintiff and averred that one Fred Harding Amoo, then an employee of the Credit Department of Merchant Bank, the plaintiff’s principal, set up the 1st defendant company as a conduit for collusion between the bank and himself to defraud the 2nd defendant. According to the 2nd defendant it was Fred Harding Amoo who convinced him of the viability of credit card sales, applied for a loan from the bank which he approved and paid into the 1st defendant’s account which the said Fred Harding Amoo operated for his own benefit at a time he the 2nd defendant was away from the country on peace keeping duties.
The 2nd defendant also pleaded that Fred Harding Amoo collected his indenture to facilitate the processing of a loan of Gh¢15,000.00 but fraudulently used it to secure a loan of Gh¢80,000.00 in the name of the 1st defendant. The 2nd defendant averred that as a result he reported the fraud perpetrated by the said Fred Harding Amoo to the police who charged and arraigned him before an Accra Circuit Court for stealing, fraudulent breach of trust and defrauding by false pretenses. The 2nd defendant averred that it is Fred Harding Amoo who is responsible for the plaintiff’s claims and that he “will apply to join the said Fred Harding Amoo as a necessary party not only as defendant to the action but also as a Third Party liable in the event to satisfy any judgment that may be entered in plaintiff’s favour against the 2nd defendant”. The 2nd defendant counterclaimed against the plaintiff for a declaration that the deed of mortgage of his property was fraudulent, unauthorized and as such unenforceable, an order setting aside the said mortgage and damages for fraud.
Based on the above the 2nd defendant applied under Order 4 Rule 5(2)(b) of the High Court (Civil procedure) Rules, 2004 C.I. 47 for an order to join Fred Harding Amoo as a defendant to the action. After hearing the application the trial judge dismissed the application for joinder relying on the ruling in Apenteng vrs Bank of West Africa (1961)1 GLR 81that the court must look at the plaintiffs writ of summons and his pleadings and if the plaintiff makes no claim directly or indirectly against the party sought to be joined or if the claim could succeed without the party sought to be joined being made a party, the application must be refused.
Dissatisfied the 2nd defendant appealed against the interlocutory ruling on the following grounds:-
The decision of the learned trial judge not to grant the application for joinder was wrongful and made in error.
The ruling of the court was against the weight of the affidavit evidence adduced at the hearing of the joinder application.
Additional grounds of appeal to be filed upon receipt of the copy of the ruling.
Counsel for the 2nd defendant/appellant did not file any additional grounds of appeal so the third ground of appeal is struck out as abandoned. Counsel argued the two grounds of appeal together as they overlap in material respects. Counsel for the 2nd defendant/appellant submitted that the judgment the trial judge relied on is outmoded since recently, the operative principle is whether the presence of the person sought to be joined is necessary for the complete and effective adjudication of all the matters raised before the court. Counsel referred to the cases of Bonsu vrs Bonsu (1971) 2 GLR 242, Agyei vrs Apraku (1977)2 GLR 10 and Ekwam vrs Pianim No. 1(1996 -97) SCGLR 117 where Kpegah; J.S.C. held that “it is the duty of the court to keep the door of the shrine of justice wide open rather than close it”. Counsel for the 2nd defendant/appellant referred to the case of Tsatsu Tsikata vrs The Republic (2007 – 2008) SCGLR 702 where it was held that, “a court has the inherent jurisdiction to join a person to proceedings before it in which such a person is interested as a party or without such joinder, order the proceedings to be served on him to enable him to be heard on the matter as such interested party or amicus curiae provided his presence can assist the court to resolve the issue at hand. The common test in these situations is the interest of justice”. Counsel submitted that the 2nd defendant/appellant had counterclaimed to set aside the deed of mortgage as being fraudulently executed and hence unenforceable as a result of the role played by Fred Harding Amoo who is therefore a necessary party to the suit. Counsel for the 2nd defendant/appellant therefore urged the court not to restrict itself to whether the plaintiff has made any claim against Fred Harding Amoo but to look at the interest of justice for all issues in dispute to be effectively adjudicated upon by joining Fred Harding Amoo to the suit as a party.
Responding to the argument raised in this appeal, Counsel for the plaintiff/respondent seemed to agree with the submissions of Counsel on the other side, except that relying on Ago Sai vrs Kpobi Tetteh Tsuru III (2010) SCGLR 762, Counsel felt that the presence of Fred Harding Amoo is not necessary to effectually and completely determine the plaintiff’s claims. Counsel for the plaintiff respondent quoted Dolitus Miegete Compagnie S.A. vrs Bank of England (1950)2 AER 605 that “the court will not compel a plaintiff to proceed against a party he has no desire to sue” especially, since according to Counsel, there is no joinder of issues to be tried between the plaintiff and the said Fred Harding Amoo. Counsel submitted that the 2nd defendant’s counterclaim that the mortgage of his property was fraudulent, unauthorized and unenforceable can be proved without the involvement of the said Fred Harding Amoo whose presence would rather embarrass the trial. Counsel for the plaintiff/respondent submitted that “a defendant who claims against a person not a party to the action, a relief or remedy related to or connected with the subject matter of the original action and substantially similar to the relief or remedy claimed by the plaintiff, may obtain leave to issue and serve a third party notice on such party”. Counsel concluded by stating that the trial court can proceed to hear this case to finality without Fred Harding Amoo being joined as a defendant and urged us to dismiss this appeal.
In the application leading to this appeal both parties treated it as an application for joinder of parties. Applications for joinder of parties are regulated by Order 4 Rule 3 of the High Court(Civil Procedure) Rules, 2004 C.I. 47. In this case since the application relates to that of a defendant the applicable rule is Subrule 3 of Rule 3 of Order 4. Subrule 3 of rule 3 of Order 4 states “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 defendant”.
This rule talks of defendants who are jointly liable with other persons for the claims of the plaintiff. After quoting Order 4 Rule 5 (2)(b) of C. I. 47 the trial judge rightly found in her ruling at page 43 of the Record of Proceedings that “From the summary of the pleadings set out above, I do not see that plaintiff makes any claim either directly or indirectly against the said Fred Amoo. However without seeking to determine the merit or otherwise of 2nd defendants claim against the said Amoo, it is my view that the justice of the case requires that the said Amoo be made a party in order that all the issues would be determined without multiplicity of suits”. This finding of the trial judge represents the present state of the law relating to joinder of parties. In the case of In Re Presidential Election Petition;
Akufo-Adoo, Bawumia and Obetsebi-Lamptey (No1)
Mahama and Electoral Commission (2013) SCGLR 1
It was held that “the overriding principle in granting an order of joinder of a person as a party to an action in addition to or in substitution of any other party under the rules of court was that all the necessary and proper parties should be before the court so as to ensure that all matters in dispute might be effectively and completely determined and adjudicated upon. Where two parties were in a dispute before a court of competent jurisdiction and the determination would directly affect a third party either in his pocket or right or would be required to make a contribution either in cash or in kind, then the court ought to exercise its discretion in favour of the applicant since by so doing all matters would be effectually and completely determined between all those concerned in the outcome”. The courts have thus gone beyond the test laid in Appenteng vrs Bank of West Africa (Supra) and Zakaria vrs Pan American Airways (1982 – 83) GLR 975 that “Another test would be whether the order if granted would raise any triable issue between the plaintiff and the party sought to be joined”. It is settled therefore that once the outcome of a suit between two persons will affect the right of a third party not involved in the suit, that third party ought to be made a party. Having pleaded that the plaintiffs’ claims arose out of the actions of Fred Harding Amoo who should be joined to the suit, the question is how is he to be made a party. As already stated Order 4 Rule 3(3) regulates joinder where the liability is joint.
In this case the 2nd defendant is not claiming that he is jointly liable with Fred Harding Amoo for the plaintiff’s claims. He is rather saying at paragraph 9 of the statement of defence that “the said Fred Harding Amoo is a necessary party not only as a defendant to the action but also as a Third Party liable in the event to satisfy any judgment that may be entered in plaintiffs favour against the 2nd defendant”. As the 2nd defendant was disputing liability to the plaintiffs claim the option available to the 2nd defendant was not to apply to join Fred Harding Amoo to the suit as a defendant but to issue Third Party notice to Fred Harding Amoo. Order 15 of C.I. 47 which regulates Third Party proceeding provides that:
1(i) Where in any action a defendant claims against any person not already a party to the action, in this Order called the “third Party”
(a) That the defendant is entitled to contribution or indemnity from the third party.
(b) That the defendant is entitled, as against the third party, to any relief or remedy relating to or connected with the original subject matter as the relief or remedy claimed by the plaintiff or
(c) That any question or issue arising between the defendant and the third party relating to or connected with the subject matter is substantially the same as a question or issue arising between the plaintiff and the defendant and should be properly determined not only as between the plaintiff and the defendant but also as between the defendant and the third party or between any or either of them.
The court may give leave to the defendant to issue and serve a third party notice
An application to issue and serve a third party notice shall be made ex-parte and shall be supported by an affidavit stating etc etc etc.
From the pleadings the 2nd defendant is claiming that the person responsible for the plaintiff’s claims is Fred Harding Amoo so the plaintiff’s claims should not only be tried between the plaintiff and the defendant, but between the defendant and Fred Harding Amoo. The proper application which the 2nd defendant/appellant ought to have made in the circumstances was to apply for leave to join Fred Harding Amoo to the suit as a Third Party under Order 15 Rule 1 of C.I. 47. Order 15 Rule 2 requires such an application to be made ex-parte following which the trial court may give further directions.
As the 2nd defendant/appellant failed to make the proper application to the court below for third party directions, the trial judge was right in dismissing the application for joinder of a defendant. The 2nd defendants appeal therefore fails and it is dismissed.
Ordinarily this should be the end of this appeal but we note under the High Court (Civil Procedure) Rules (2004) C.I. 47 Order 4 Rule 5(2)(b) that “At any stage of proceedings the court may on such terms or on application 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”
Under the General Powers of the Court, Rule 31 of Court of Appeal Rules 1997 C.I 19, the Court of Appeal may make any order necessary for determining the real question in controversy and Rule 32 also provides that the Court shall have power to give any judgment and make any order that ought to have been made, and to make such further or other order as the case may require including any order as to costs.
From the foregoing and to allow a speedy disposition of this suit we order that Third Party notice be issued and served on the said Fred Harding Amoo for the suit to take its normal course under Order 15.
We award costs of Gh¢2,000.00 in favour of the plaintiff/respondent.