ACCRA- A.D 2019

SUIT NO:  GJ/826/2018


i. Introduction:

[1] The facts of this case are free from complexity. The Plaintiff Indepth Network issued out a Writ of Summons sealed at the registry of this Court against the Defendants herein for certain judicial reliefs. Mr. Justin Amenuvor entered appearance for the 1st to 7th Defendants and filed a Statement of Defence and Counterclaim against certain Defendants including the 5th Defendant, Mr. Nana Agyei Baffour Awuah who is the Solicitor who issued the writ of summons for the Plaintiffs.


[2] The 5th Defendant/Applicant to the Counterclaim has brought the instant application for an order to strike him out as a party to the action on the grounds that he is not a necessary party pursuant to the inherent jurisdiction of the Court and/or Order 4(5) of the High Court Civil Procedure Rules, 2004 (C.I. 47). The Applicant prays the Court to strike him out as a party to the suit on the grounds that the suit (i) discloses no reasonable cause of action against him (ii) it is vexatious and an abuse of the Court’s process and (iii) misjoinder. In a nutshell, the 5th Defendant to the Counterclaim prayer is to be non-suited.


ii. The Case For and Against the Application.

[3] I note that due to scheduling challenges of the Court it became impossible for the Court to hear viva voce arguments of Counsel after the application was filed and the Respondents also filed an affidavit in opposition. The Court ordered both parties to file their legal arguments by way of legal submissions. Both Counsel have complied with the order.


[4] Counsel for the Applicant in his legal submission filed on January 11, 2019 referred to the 10 paragraph supporting affidavit of Nana Agyei Baffour Awuah filed on July 24, 2018 and submitted by referring to paragraph 7 of the affidavit in support that the basis of the Respondent’s action against his client are captured in paragraphs 21 and 22 of the Statement of Defence and Counterclaim. The said paragraphs state as follows:

21. In the further denial, the 1st to 7th defendants say that Marcel Tanner and Nana Agyei Baffour Awuah signed a resolution on the 31st day of March 2018 on a forged letter head of the Plaintiff to remove the 2nd Defendant as a signatory to the accounts of the Plaintiff at a time when the 2nd Defendant was still the Executive Director of the Plaintiff. The resolution was served on the 8th and 9th Defendants.

22.       In further denial the 1st to 7th Defendants say that Fred Newton Binka and Titus Tei procured Nana Agyei Baffour Awuah, the lawyer for the Plaintiff in the instant action to write to the 8th and 9th Defendants on the 4th day of April 2018 to say Fred Binka, Titus Tei, Stephen Tollman and Marcel Tanner were the Directors of the Plaintiff. The letter further stated that Marcel Tanner in the Chair of the Board”.


[5] It is the case of the Applicant through Counsel’s submission filed that “the joinder of him to the suit is not appropriate but rather frivolous, vexatious and an abuse of the Court’s process”. According to learned Counsel the “Respondent’s claims against the applicant in his counterclaim are for the reliefs that the applicant be declared by the court not a director, officer or employee of the 1st defendant to the counterclaim and to be perpetually restrained from holding himself out as such”. Learned Counsel submitted that the Applicant “is a lawyer whose employer Sarkodie Baffour Awuah & Partners, a registered law firm represents the 1st Defendant to the counterclaim. The law firm renders professional services to the 1st defendant as lawyers in the capacity of Company Secretary”.


[6] According to Learned Counsel the firm Sarkodie Baffour Awuah & Partners has a distinct legal personality from the Applicant, Mr. Agyei Baffour Awuah. In this case Counsel contends that the Respondent is confusing the position of the Applicant as a lawyer of the law firm and the said law firm. Counsel referred to the Respondent ExhibitMA” being a resolution dated March 11, 2018 attached to the Affidavit in Opposition and submitted that the Applicant signed the said resolution “as a lawyer of the firm” and therefore there is no basis to join him as an individual to the suit. Counsel further submitted that “the professional acts of the Applicant are the acts of Messrs Sarkodie Baffour Awuah & Partners which is the company secretary and therefore the Applicant cannot be dragged to court to answer for an acts of his done in the conduct of his professional duty for his employer”.


[7] Learned Counsel referred to Order 4 Rule 5 (2) (a) of C.I.47 and prayed the Court to disjoin the Applicant because according Counsel the Applicant is “improperly or unnecessarily made a party” to the suit. The Applicant cited the Supreme Case of IN RE: PRESIDENTIAL ELECTION PETITION; AKUFFO-ADDO, BAWUMIA & OBETSEBI-LAMPTEY (No.1) v. MAHAMA & ELECTORAL COMMISSION (NATIONAL DEMOCRATIC CONGRESS APPLICANT) (No.1) [2013] SCGLR 1 to submit that to be a necessary party the relief being sought must directly affect him otherwise he is not a necessary party.


[8] The Applicant’s Counsel further referred to such cases as YAHAYA & ANOR v. SUMMA HOLDING CORPORATION & ANOR Suit No. (H1/48/2005) CA unreported and ASANTE v SCANSHIP GHANA LIMITED [2013-2014] SCGLR 1296 to submit that the law is that the Court is to determine issues between proper parties. In the instant case according to Counsel the “reliefs being sought by the counterclaimant does not affect the rights and interest of the Applicant to warrant his being joined to the suit”. Based on all of the above and other submissions made including one that this Court has the inherent jurisdiction to determine the instant application, the Applicant has prayed the Court to grant the application and prayed the Court to strike out the name of the 5th Defendant to the Counterclaim as a party.


iii. Respondents Arguments:

[9]  Counterclaimant/Respondent in opposing the application relied on the depositions in the affidavit in opposition together with the written submission filed and submitted that “in the face of the allegations of fraud and counter allegations in the pleadings before the Court which is notice to the whole world that the 5th Defendant to the Counterclaim carries himself as the Company Secretary as exhibited in the letterhead that was created after the 1st Defendant was allegedly removed as secretary” the 5th Defendant is a necessary party.


[10] Counsel referred to Order 4 Rule 5 (2) of C.I. 47 and also the case of USHER v. DARKO [1977] 1 GLR 476 and BYRNE v. BROWN (1889) 22 QBD 657 to submit that the power of the Court to strike out, add or substitute parties is to ensure that all parties to the dispute relating to the subject matter are brought before the Court at the same time so that the dispute may be determined without delay, inconvenience and the expense of separate action and trials.


[11] Learned Counsel further submitted that there is consequence for holding one’s self out in a particular capacity and the subsequent reliance on that act by others. In this case it is the contention of the Respondent that Nana Agyei Baffour Awuah has on several occasions signed documents as the Secretary of Indepth Network, the 1st Defendant to the Counterclaim and therefore he should be held out as such for him to answer the allegations made against him. Counsel referred to Section 26 of the Evidence Act, NRCD 323 and such cases as COMMODORE v. FRUIT SUPPLY GHANA LTD [1977] GLR 241, CA and QUARCOOPOME v. SENYO ELECTRICALS GHANA LTD [2009] SCGLR 213 to support the submission.


[12] Further, learned Counsel submitted that the acts of the Applicant, the 5th Defendant to the Counterclaim of signing the documents of Indepth Network in his capacity as its Secretary makes him personally liable and a proper party to be joined to the suit because his acts cannot be the work of the Law Firm Sarkodie,Baffour Awuah and Partners. Counsel also submitted that though the tenor of Order 4 Rule 5 (2) (a) being joining or striking out a person as a party is discretionary, Counsel submitted that the discretion should be exercised to ensure that all parties to the dispute relating to the matter are brought before the court for the matter to be dealt with. Counsel referred to Article 296 of the 1992 Republican Constitution to support his submission and prayed the Court to dismiss the instant application.


The Court’s Opinion & Analysis:

[13] I start my analysis by reiterating, Order 4 r 5(2) (a) of CI 47 which provides as follows:

“(2) At any stage of proceedings the court may on such terms

(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.”


[14] It is pertinent also to state that the court is vested with that power at any stage of the proceedings to order any person/party 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.[1]


[15] I recognize that by the true and proper interpretation of Order 4 r 5(2) of the High Court Civil Procedure Rules, 2004 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. It is instructive that there was such a similar provision in Order 16 Rule 11 in the old rules, the High Court (Civil Procedure) Rules, 1954 LN140A.


[16] It is also worth noting that the Courts 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 views. 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 SUPRA and COLEMAN v SHANG (1959) GLR 389 in my view represent the wide position.


[17] In USSHER v DARKO (SUPRA) 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).


[18] 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.”


[19] 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.”


[20] 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 to ensure that the dispute is effectively and completely determined and adjudicated upon ought to be added as a party.


[21] I note that before the above Ghanaian positions stated above, Lord Denning MR in GURTNER v CIRCUIT (1968) 2 QB 587 C/A eloquently laid out the test at p. 598 as follows:

“When two parties are in dispute in an action at law, and the determination of that dispute will directly affect a third person in his legal rights or his pocket, in that he will be bound to foot the bill, then the court in its discretion may allow him to be added as a party on such terms as it thinks fit. By so doing, the court achieves the object of the rule. It enables all matters in dispute to ‘be effectually and completely determine and adjudicated upon’ between all those directly concerned in the outcome.”


[22] 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 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, postulates 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.


[23] Based on all of the above, in applying the general rule in my opinion, the overriding factor in this case is whether the Applicant being the 5th Defendant to the Counterclaim has any personal interest or obligation in the dispute between the 1st to 7th Defendants/Respondents and the Plaintiff and the other named Defendants to the Counterclaim to necessitate him as party to the suit. Also, if the interest or obligation is established, this Court should consider whether his personal presence in the suit as a party shall assist the Court to effectually and effectively dispose of all the matters in dispute in this case and/or would lead to the most just, expeditious and least resolution of the dispute between the parties.


[24] Having regard to the general rule and the principles stated above and applying same to the case at bar, I am of the opinion that Nana Agyei Baffour Awuah does not have any personal and or common issue(s) of law or fact of sufficient importance to warrant his presence as a party in the suit. I have studied Exhibit MA, which seem to be the basis for the joinder of the Applicant carefully; and I am of the view that Nana Agyei Baffour Awuah does not need to be a party to assist the Court in dealing with the claim of the Defendants’ Counterclaim including the allegation of fraud. In my respectful view the Plaintiff – Indepth Network is the party whose actions the Defendants are challenging in the Counterclaim and therefore should the Court accede to the claim all acts done for the Plaintiff by Nana Agyei Baffour Awuah either by himself and/or Sarkodie Baffour Awuah and Partners, the law firm he works for would be declared invalid and of no effect.


[25] Finally, making the Applicant a party is not the only way by which his actions or inactions can be verified by the Court. There are other means by which a Court of law can hear from a person in a litigation without necessarily being a party to the suit. Based on all of the above I am of the respectful view that authoring the attached Exhibit MA alone without more should not be enough to make the Applicant a party to the suit. Therefore to my mind, the presence of the Applicant, Nana Agyei Baffour Awuah is not necessary to ensure that the dispute is effectively and completely adjudicated upon and determined.


[26] It is for all the above reasons that I hold that the Applicant’s application is to be GRANTED. No order as to Cost. The award of Cost for this application is cancelled out by the fact that the Plaintiff/Applicant’s application for Stay of Execution is dismissed as unmeritorious and the 1st to 7th Defendants have not been awarded cost for that application.