APPLICATION FOR JOINDER PURSUANT TO ORDER 4 RULE 5(2) OF CI 47

[3] I note that the Applicant informed the Court a similar application is made in Suit No. GJ/1318/2018 titled GBEDESSI FOLLY-KLAN ADAMAH v JUDICIAL SERVICE OF GHANA & GHANA POLICE SERVICE. The parties agreed that the affidavit evidence filed should be applied in both cases as well as arguments of Counsel. The Plaintiff is opposed to the application and has an affidavit in opposition deposed to by one of his lawyers and filed on June 7, 2019.

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

[4] In moving the application learned Counsel for the Applicants, Christiana Awoonor Anderson relied on the depositions as contained in the affidavit in support of the application and the attached exhibits. The pith and substance of the prayer is that on March 8, 2013 Her Ladyship, Avril Lovelace-Johnson (JA) sitting as an Additional High Court Judge at Tema delivered a judgment in the case of Kweinor Tei Kwablah v. Nii Okai Adjei and Another in Suit No. E1/17/2007 in favour of the Defendants. According to the Applicants the Judgment Creditors on August 27, 2015 obtained a Writ of Possession also from the High Court, Tema. It is the case of the Applicants that subsequently, a Court Demolition Order was obtained on July 25, 2017 and same was executed on February, 2018 in the presence of the Applicants.

[5] It is the case of the Applicant that the 1st Defendant/Applicant only sent officials to execute the Court Order and invited the personnel from the 2nd Defendant/Applicant to provide security. To that extent, it is deposed that the Applicants have no interest in the matter and therefore the right persons “better placed to defend this matter are Nii Okine Adjei and Agnola Ghana Ltd who are Defendants/Judgment Creditors who carried out the demolition exercise”. To the Applicants the joinder of the Nii Okine Adjei and Agnola Ghana Limited as Defendants is necessary to ensure that all matters in dispute in this proceeding are effectively and completely determined.

[6] Counsel for the Applicants submitted that the Plaintiff/Respondent has filed an application for a survey to be carried out to ascertain the true dimensions of the land to ascertain whether or not the Defendants in executing the judgment of the Court went beyond the Court order. According to Counsel, it is the case of the Applicants that because they were not parties to the original suit but only came in to execute a Court order, it would be prudent for the original parties to be joined in order to assist the Court to determine all matters in dispute as the Applicants do not have interest in the matter.

[7] Counsel also submitted that joining the Judgment Creditors would assist the Applicants to have access to all the necessary documents required to answer the Plaintiff’s claim. Counsel said the Defendants for instance do not have a copy of a site plan for the survey instructions and they believe they could have access when the original parties are joined to the suit.

[8] The Plaintiff filed an affidavit in opposition to say that the application should be refused. In the affidavit in opposition it is averred that the fundamental issue to be determined from the pleadings is whether or not the execution of the judgment carried out by the Defendants was within the boundaries of the land as captured by the Order of the Court. According to the deponent, Yvonne Akuffo Addo the issue as to whether or not the execution of the judgment was carried out within the Orders of the Court can be resolved without the presence of the joinder parties because a Surveyor’s report after the preparation of a composite plan can be used to resolve the issue.

[9] The Plaintiff’s other grounds of opposition are that the Defendants have already stated that they executed the judgment in accordance with law and with precision. To that extent the Plaintiff says it is obvious from the statement of defence filed that the Defendants did not raise any further issues for consideration in the case to compel a joinder of any other party. Further, it is the case of the Plaintiff/Respondent that the Defendants having categorically stated in the pleadings that, they did no wrong their only option is to have the “sought to be joined parties” brought into the case by way of third-party proceedings for purposes of an indemnity and not to be joined as parties.

[10] In responding to the arguments of the Applicants, Counsel for the Plaintiff Mr. Kwame Boafo Akuffo submitted that his client is vehemently against the application. Counsel relied on all of the depositions in the affidavit in opposition and prayed the Court to dismiss the application. According to Learned Counsel the instant application based on the affidavit contradicts the statement of defence filed and on the docket.

[11] According to Counsel the Defendants have stated that they executed the judgment with precision and so Counsel asks if they did not know the boundary how did they say they executed the judgment with precision. Also, Counsel submitted that the Applicants have not said the Judgment Creditor did not tender a site plan at trial and if they did, the Judicial Service is the custodian of that document and therefore it lies ill in their mouth to say that the original parties ought to be joined for the purposes of providing them with a site plan.

[12] Finally, Counsel submitted that the statement of defence filed has not raised any issue that requires the joinder of the Judgement creditor. Also, Counsel submitted that the order for execution which was signed by the Registrar referred to the indenture and supposedly the site plan. Therefore the Applicants position that they do not have site plan is unacceptable. Based on all of the above submission, Counsel prayed the Court to dismiss the application and cost awarded against the Applicants.

iii. The Court’s Opinion & Analysis:

[13] I now proceed to consider the application. I recognize that by the true and proper interpretation of Order 4 r 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. 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.

[14] It is instructive that there was such a similar provision in the old rules, the High Court (Civil Procedure) Rules, 1954 LN140A. It was provided in Order 16 r 11 in part as follows:

“The court or a judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court or a judge to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendant be struck out and that the names of any parties, whether plaintiff or defendant who ought to have been joined, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added.”

[15] It is also worth noting that many of the cases on joinder in our jurisprudence were decided based on the old Order 16 Rule 11. 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.

[16] 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)

[17] 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.”

[18] 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.”

[19] More recently, in SAM (No.1) v. ATTORNEY GENERAL [2000] SCGLR 104 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.

[20] Another test which I think ought to engage the attention of a Judge when considering an application for joinder is whether the rights and liabilities of the proposed joinder are the same as the Defendant if the party is being joined as a Co-Defendant. On the other hand, if he/she is being joined as another Plaintiff the question should be addressed as to whether his rights and liabilities are the same as the Plaintiff. As a general rule, for two or more persons to be joined together as Co-Plaintiffs or Co-Defendants in a law suit they generally must share similar rights or liabilities. At common law a person could not be added as a Plaintiff unless that person, jointly with the other Plaintiff(s) was entitled to the whole recovery of their claim. In the same vein a person could not be added as a Defendant unless jointly with the other Defendant(s), was liable for the entire demand.

[21] 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:

[22] In my opinion, the overriding factor is whether the party to be joined is making any claim of interest or 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 has any personal interest in the outcome of the case. In other words, whether his interest either in cash or in kind may be affected by the outcome of the case.

[23] Based on all of the above, in applying the general rule to the claim before the Court in my opinion, there is no proper basis to join the original parties to this suit. The claim before the Court’s only nexus to the proposed joined parties is that it was their judgment the Defendants executed. In my view that alone is not enough to make them necessary parties to the suit because their presence shall not assist this Court to effectually and effectively dispose of all the matters in dispute in this case. As I understand the Plaintiff’s claim before the Court is for damages for unlawful destruction of property and for special damages pursuant to the execution undertaken after the judgment by the Defendants. Further, in my view any decision made would not have a personal effect on the Judgment Creditors. I agree with Learned Counsel for the Plaintiff/Respondent that if anything at all the Applicant ought to apply for third party proceedings against the original parties and claim indemnity against them.

[24] Having given active consideration to the application; critically studied 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 original parties to the suit. If the Defendants believe that they need to obtain a copy of a site plan and other documents from them to assist them to contest the suit they should contact them but with respect that should not be the basis to make them parties to the suit. The application therefore fails and it is so DISMISSED.

[25] As stated elsewhere in this ruling is also to be applied as the ruling in the case of GBEDESSI FOLLY-KLAN ADAMAH v. JUDICIAL SERCICE OF GHANA & GHANA POLICE SERVICE – SUIT NO: GJ 1318/2018. Costs to the Plaintiff/Respondents assessed at Gh₵2000.00. Gh₵1000.00 Suit GJ/1317/2018 and Gh₵1000.00 for Suit No: GJ1318/2018.

CASES REFERRED TO

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