RULING

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

Introduction

The parties in this suit have all filed their witness statements and presently there is an ongoing mini trial to determine who has the capacity to sue as Plaintiff as the parties (Plaintiffs) are unable to agree by themselves.

By a Motion on Notice filed at the registry of this Court on January 10, 2019, Mr. Daniyal Abdul-Karim and one Amadu Rufai, by their lawyers are seeking an order under Order 4 Rule 5(2) (b) of the High Court (Civil Procedure) Rules, 2004 (CI 47) to be joined in this suit as the Defendants.

It is enacted in Order 4 r 5(2) (b) of CI 47“(2) At any stage of proceedings the Court may on such terms as it thinks just either of its own motion 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.”

The 2nd Defendant/Respondent has not taken any position in regards to the grant or otherwise of the application. The 1st Defendant, Lands Commission has always been absent despite the service of hearing notices. The Plaintiffs are however opposed to the grant of the application.

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

In moving the application learned Counsel for the Applicants, Mr. Samani Zakari 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 the Applicants acquired the land in dispute from the 2nd Defendant and went ahead to obtain a land title certificate and are in possession of same. According to Mr. Zakari the 2nd Defendant has assigned its interest to the Applicants who have gone ahead to register their interest in accordance with law. Copies of the Land Certificates have been attached as Exhibit “DAK Series” to the application.

According to the Applicants it is necessary that they be joined to the suit because any order or judgment shall have an impact on them and therefore they should be heard as title holders who the 2nd Defendant has assigned its interest to. Counsel cited the Supreme Court case of SAM (No.1) v. ATTORNEY GENERAL [2000] SCGLR 104 and BONSU v BONSU (1971) 2 GLR 242 to support his submission. Mr. Zakari further submitted that prior to this action, in an earlier suit the 2nd Defendant’s title was suspended but it has not taken any step to have it restored and therefore the Applicants cannot solely rely on the 2nd Defendant to protect their interest in this suit.

Finally, in responding to the Plaintiffs’ contention that joining the Applicants shall delay the suit, learned Counsel submitted that the contention is speculative because the Plaintiffs themselves have not done anything to move the matter forward after instituting the action few years ago. Based on all of the above Learned Counsel submitted that a case for joinder has been made and so should be granted.

In responding to the arguments of the Applicants, Counsel for the 1st Plaintiff Mr. Kwabena Kuffour submitted that they are vehemently against the application. Counsel relied on all of depositions in the affidavit in opposition and prayed the Court to dismiss the application. According to Learned Counsel the instant application is unnecessary because the Applicants have coterminous interest with the 2nd Defendant as their grantor and therefore the presence of the 2nd Defendant in this suit should suffice. Counsel quoted Justice Samuel Marful-Sau’s book “A Practical Guide to Civil Procedure in Ghana” and the topic on joinder to support his submission.

Mr. Kuffour further submitted that the 2nd Defendant, Landline Properties Limited has many grantees and so by a rhetorical question Counsel asked if the Applicants are saying all the grantees should also be joined. Learned Counsel therefore submitted that the application should be refused because granting same will open the flood gates for many people to insist on joining the suit to become parties. Finally, Mr. Kuffour submitted joining the Applicants shall further delay the suit which has already delayed long enough. He therefore prayed the Court to dismiss the application. Mr. Agyenim-Boateng for the 2nd Plaintiff did not file any affidavit of his own and did not provide the Court with any submission of his own. He however informed the Court that he was aligning himself with the submissions of Mr. Kuffour in this application.

The Court’s Opinion & Analysis:

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.

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.”

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 SUPRA; 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.

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)

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.”

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 16 r 11.”

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

I note that before the 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.”

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.

Conclusion & Disposition:

In my opinion, the overriding factor is whether a 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.

Based on all of the above, in applying the general rule in my opinion, it cannot be denied that any decision to be made shall have an impact on the Applicants as Land Certificates holders. In my view the fact that the Applicants’ interest shall be affected makes it proper that they be given the opportunity to be heard and participates in the proceedings so as to assist the Court to effectually and effectively dispose of all the matters in dispute in this case. Further, in so far as any decision would have a personal effect on the Applicants, denying them the right to be heard as parties would in my view constitute a fundamental error.

Even though the Court is mindful of the caution sounded by the 1st Plaintiff’s Counsel of the possibility of opening the flood gates to many grantees of the 2nd Defendant and thus turning this suit into a charade, or the potential for this to be a slippery slope culminating in a pandora’s box, this Court is able to limit the potential Applicants depending on the individual cases. Finally, I wish to simply say that my decision is based on the law as I understand it and the evidence put before me. The feared unintended consequences and the opening of the “floodgates” should therefore not deter me from applying the law and doing justice in accordance with my oath.

It is for all the above reasons it is my holding that the application for joinder be allowed on terms. The terms being only Mr. Daniyal Abdul-Karim and Amadu Rufail shall be joined as 3rd and 4th Defendants. Mr. Abdul-Karim’s prayer that he be joined for himself and others who this Court does not know is refused. The Applicants are hereby joined as the 3rd and 4th Defendants to this suit. Cost of GH₵1,000 to the 1st Plaintiff who shall amend the title of the suit to add the 3rd and 4th Defendants within three weeks from today. Accordingly ordered.