IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
KUMASI - A.D 2016
CHAMPION BROAD CASTING LTD - (Plaintiff)
MULTI-CHOICE GHANA LTD – ACCRA, DSP SETH SERWORNU OF NATIONAL CID HEADQUARTERS ACCRA & MATHIAS BAWA - (Defendant)
DATE: 1ST DECEMBER, 2016
SUIT NO: C12/262/2016
JUDGES: FRANCIS OBIRI, JUSTICE OF THE HIGH COURT
MUJEEB RAHMAN AHMED WITH ANNIS MOHAYIDEEN FOR PLAINTIFF/RESPONDENT
PRECIOUS AIDOO FOR ANTHONY FORSON FOR 1ST AND 2ND DEFENDANT
The 1st and 2nd defendants have brought this instant application to have the 2nd defendant disjoined from this suit. The motion is supported by affidavit. I wish to quote the relevant paragraphs in this ruling:
(3) The instant suit discloses no cause of action against the 2nd defendant as it seeks reliefs against the 2nd defendant for actions performed in the course of a criminal investigation by the Ghana Police Service into the activities of the plaintiff.
(4) The plaintiff by its own pleadings states that the operation complained of was conducted with policemen in uniform and rightfully addresses the 2nd defendant as a Deputy Superintendent of Police which is indeed the office/designation of the 2nd defendant
(5) The 2nd defendant is not a proper party to be sued in respect of official acts of the Ghana Police Service in which he participated in his official capacity.
(6) The reliefs sought against the 2nd defendant including the recovery of items seized by the police cannot be recovered from the 2nd defendant.
(7) The second defendant has no personal interest in the dispute and therefore cannot be a proper defendant to the instant action.
(8) That I am also advised and verily believe same to be true that action brought against the second defendant to hold him personally liable for actions of the police in which he was involved in the course of his duties as a police officer is improper and unlawful and ought not to be entertained by this honourable Court.
The plaintiff/respondent resisted the application by filing affidavit in opposition. I wish to quote the relevant paragraphs in this ruling:
11. That I verily believe that, the present legal representation for the second defendant is inconsistent with the case put up by the 2nd defendant/applicant.
12. That the immediately preceding paragraph is repeated and the plaintiff/Respondent adds that, the 2nd defendant acted as and indeed was a surrogate of the 1st defendant/applicant who was on the frolic of his own.
13.That the conduct of the defendants/applicants is illegal and unlawful and all the defendants ought to be given the opportunity to defend themselves before the honourable Court.
When the motion came up for hearing on 28-11-06, Counsel for the applicant repeated all the averments in the application and added that, the 2nd defendant was performing his official functions when the items of the plaintiff were seized.
He added that, even if the second defendant exceeded his duties in the course of performing his duties, he cannot be held personally liable. He also argued that, the 2nd defendant has the right to engage a lawyer personally to bring the instant application.
When Counsel for the respondent took his turn, he prayed the Court to dismiss the application. He repeated all the averments in the affidavit in opposition and added that the second defendant and the other Policemen were acting on the frolic of their own when they went to seize the plaintiffs’ items. Therefore, he can be sued personally. This action according to the plaintiff was illegal and unlawful. He also submitted that, if the 2nd defendant is of the view that he ought not to have been sued personally, then he ought not to have engaged Counsel on his own to defend him.
He further argued that, the procedure the second defendant adopted by filing this motion beyond 14 days after filing the conditional appearance was wrong. He therefore prayed for the dismissal of the application.
It is the above averments and the submissions that I have to give my opinion one way or the other.
I first wish to address the issue of the legal representation for the 2nd defendant. The 2nd defendant was sued personally. There is no indication before the Court as to the mode of service of the writ on him. The Court will therefore presume that, he was served personally as a police officer. Under the Old High Court rules LN 140A (1954) ,order 8 rule 8(4) which deals with service of writs on Government Officials including police officers were to be served through their heads. This is however not the case under C.I 47. Under C.I 47, there is no rule that prescribes any different mode of service of writs on Government Officials which include police officers. Therefore, all such persons are to be served personally under the new rules with reference to Order 7 of C.I 47.
See Ntiamoah Vrs. Addo (2009) 5 GMJ 198 CA.
Now, if the second defendant was sued and served in person, then he has the right either to defend himself in person or to engage a lawyer of his choice. And in this case, he engaged a lawyer to represent him.
It is therefore my humble view that, the second, defendant engaging a Counsel to defend him is not wrong as he was only exercising his constitutional right.
Another argument which was urged on the Court especially under paragraph 3 of the applicant’s affidavit in support is that, the suit discloses no cause of action against the 2nd defendant.
Such cases are taken care off under Order 11 rule 18 of C.I 47. Under Order 11 rule 18(1) (a), the Court at any stage of the proceedings may order any pleadings or anything in any pleadings to be struck out on the grounds that it discloses no reasonable cause of action or defence. Indeed the writ and the statement of claim are part of pleadings. However, in cases, where it is alleged that the pleading does not disclose any reasonable cause, and should be struck out, it is only the pleadings which will be considered in its determination.
See Okai Vrs. Okoe (2003-04) SCGLR 393
Halley Vrs. Ejura Farms (1977) 2 GLR 179 CA
Evans Penny Industries Co. Ltd Vrs. Technodem Associates Ghana Ltd (1992-93) GBR 803 CA.
In such cases however, the discretion of the Court is exercised only if in plain and obvious cases, the claim or the defence is clearly unsustainable. That is, it must be exercised cautiously.
In Appiah Vrs. Boaky e (1993-94) 1 GLR 417 SC ,it was held that, a pleading
pleading would only be struck out in plain and obvious case where it is apparent that, even if the facts are proved, the plaintiff is not entitled to the relief he seeks.
See also Ghana Muslim Representative Council Vrs. Salifu (1975) 2 GLR 246 CA. If the Court is urged on to rule that a case does not disclose a cause of action, then the Court can consider all the facts including affidavit evidence.
See: Okofo Estates Ltd Vrs. Modern Signs Ltd (1996-97) SCGLR 224 SC
Koranteng Vrs. Crocodile Matchets Ghana Ltd (2013) 58 GMJ 101 CA
In this case, the plaintiff alleged in her pleadings especially the writ of summons that, the 2nd defendant acted unlawfully and on the frolic of his own. I think the pleadings disclose triable issues which may have to be determined by the Court. Therefore, the second defendant cannot be disjoined on that ground.
Now if there are triable issues between the plaintiff and the second defendant, then is the second defendant to be sued personally?
Under Order 4 rule 5(2) of C.I 47, a trial Court has power at any stage of the proceedings either suo mutu or on application to 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.
See: Soon Boon Seo vrs Gateway Worship Centre (2009) SCGLR 278 at 292.
The Court also has power under Oder 4 rule 5(2) (b) of C.I 47 to join any person as a party to a suit on its own motion or upon application. This is to ensure that all matters in dispute in the proceedings are effectively and completely determined and adjudicated upon.
See Ampratwum Manufacturing Co Ltd vrs Divestiture Implementation Committee (2009) SCGLR 692
In Re Presidential Election Petition, Akuffo Addo, Bawumiah & Obetsebi-Lamptey (No. 1) vrs Mahama & Electoral Commission, National Democratic Party (Applicant) (2013) SCGLR (special edition) 1.
It is however trite that, actions are not defeated because of non-joinder or misjoinder of parties. In this case, there is evidence on record that based on the actions of the 2nd defendant and others, a criminal action has been instituted against an officer or shareholder of the plaintiff’s Company called Dr. Kwaku Frimpong alias Champion and another person before the Circuit Court Accra.
If the two people have been arraigned before Court as a result of the actions connected to or an incidental to the operations for which the 2nd defendant has been sued in this Court, then it means that, whatever the second defendant did whether lawful or unlawful or legal or illegal was done at the behest of somebody. In such cases, the second defendant whilst acting will be acting directly or indirectly on behalf of the Inspector General of Police and for that matter the Government of Ghana. Therefore, if he exceeded the limit of his power, then it is his principals who are in this case the Inspector General of Police and the Attorney General who have to answer. I am convinced by the documents on record that, he acted for the State of Ghana. However, as I have indicated, as to whether it was legal or not is yet to be determined. Article 88 (5) of the 1992 Constitution directs that the Attorney General should be named the defendant in all civil proceedings against the state. Therefore, it is the Attorney General who should be made to defend all actions taken by state officials in the course of their duties.
See: Ampratwum Manufacturing Co. Ltd Vrs. Divestiture Implementation Committee (supra)
Republic Vrs. High Court Accra Ex parte Attorney General (Delta Foods-Interested Party) (1999-2000) 1 GLR 255
Again, Article 88(1) and (5) of the 1992 Constitution make the Attorney General the principal legal adviser to the Government and conducts all civil actions for and on behalf of the state. Consequently, it is the Attorney General who should be made to defend all actions undertaken by state officials in the course of their duties as stated above.
For the above reasons, I am of the view that, the second defendant was wrongly joined to the suit in person. Accordingly, his name will be struck out as a defendant in the case. It must however be noted that, the Court suo motu has the right to join a party to a suit, if the joinder will help effectively to determine all matters in controversy.
See Ekwam Vrs. Pianim No.1 (1996-97) SCGLR 117.
I will therefore suo motu join the IGP and the Attorney General as defendants in this case without asking the plaintiff to file another application to have them joined which may be an added expenses. I am making this order having in mind Order 1 rule (2) of C.I 47 and also taking solace in the opinion of Kpegah J (as he then was) in the case of Kuma Vrs. Elizabeth Bart-Plange (1989-90) 1GLR 119 at 128 where he held.
“It is the duty of every Court to ensure that, in a given situation justice is done. Technicalities must not be permitted to frustrate this primary and all important function of the Court if only the matter or decision lies within the discretion of the judge”.
Before I conclude, I wish to address a small issue about the conditional appearance filed on behalf of the 1st and 2nd defendants on 31-10-16 and the motion to disjoin the second defendant filed on 22-11-16. It is the position of the law that, when conditional appearance is filed, a person who filed same should file a motion within 14 days. This is to either attack the issue of the writ or service of the writ or non-service of the notice of the writ or to discharge any order that has been given granting leave to issue notice of the writ on the defendant outside the country.
See: Order 9 rule 8(a) (b) and (c) of C.I 47.
However, if the motion is not filed within 14 days, then the conditional appearance is treated as an ordinary appearance. Therefore, since the first and second defendants’ present motion was not filed within the 14 days after the entry of the conditional appearance, it will be treated as ordinary defence.
Under Order 4 rule 5 of C.I 47, motion for joinder, non-joinder and misjoinder can be made at any time of the proceedings. Consequently, the application by the 1st and 2nd defendants has been brought properly under Order 4 rule 5 of C.I 47.
In conclusion, subject to the suo motu order for joinder by the Court in respect of the IGP and the Attorney General to this suit as defendants, the 1st and 2nd defendants’ application succeeds. The plaintiff must serve copies of the order for joinder as well as all the pleadings so far filed in this case on the IGP and the Attorney General or their representatives.
The plaintiff is also to write to the Registrar for the title of the suit to be amended to reflect the joinder.
No order as to cost.