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RULING
AMPIAH, J.S.C.:
This is an application by the
applicants herein, DIVESTITURE
IMPLEMENTATION COMMITTEE and
EMMANUEL AMUZU AGBODO for an
order joining them as
Co-Defendants in the case,
“JOSEPH SAM
VS.
THE ATTORNEY-GENERAL (SUIT
NO.5/98)
now pending in this Court.”
The first applicant is “the
agency of the Government for the
implementation of all Government
policies in respect of
divestiture programmes”, and the
Second applicant is a member and
an officer of the first
applicant Committee.
On or about 8th September, 1998,
the Plaintiff in the above-named
Suit i.e. Suit No. 5/98 invoked
the original jurisdiction of
this Court by issuing a Writ for
—
“A declaration that Section 15th
of the Divestiture of State
Interests {implementation} 1993
P.N.D.C.L. 326} is inconsistent
with or in Contravention of the
provisions of Articles 140 (1)
and 293 (2) and (3) of the 1992
Constitution of the Republic of
Ghana and to that extent it is
null and void.
This action is against the
Attorney-General as the Chief
Legal Adviser to the Government
of Ghana and who by law is to be
sued for all defaults of
Government, its agencies or
servants.
The applicants content that
since Section 15 of the
Divestiture of State Interests
{Implementation} Law, 1993
{P.N.D.C.L.}326 charges them
with the responsibility of
implementing the Government's
policies in respect of its
divestiture programmes and
creates an indemnity for them in
the discharge of their
functions, against Court
proceedings, they are necessary
parties to any action before the
Court which touches on the
programme and must therefore be
joined. Consequently, they ask
that they be joined in this
action.
Section 15 of P.N.D.C.L. 326
provides,
“15. No action shall be brought
and no Court shall entertain any
proceedings against the State,
the Committee or any member or
officer of the Committee in
respect of any act or omission
arising out of a disposal of any
interest made or under
consideration under this Law.”
Generally speaking, the Court
will make all such changes in
respect of parties as may be
necessary to enable an effectual
adjudication to be made
concerning all matters in
dispute. In other words, the
Court may add all persons whose
presence before the Court is
necessary in order to enable it
effectually and completely to
adjudicate upon and settle all
the questions involved in the
cause or matter before it. The
purpose of the joinder therefore
is to enable all matters in
controversy to be completely and
effectually determined once and
for all. But this would depend
upon the issue before the Court
i.e. the nature of the claim.
The issue now before the Court
is the determination of whether
or not Section 15 of P.N.D.C.L
326 is inconsistent with or in
contravention of the provisions
of Articles 140 (10 and 293 (2)
and (30 of the 1992 Constitution
and if so to what extent it
should be declared null and
void.
No specific allegation is being
made against any of the
applicants for any part played
in the implementation of the
divestiture programme for which
an indemnity may be sought. The
situation may have been
different if a claim had been
made against the Government of
the implementation of its
divestiture programmes; that
would have called for a
different consideration.
Significantly, for purposes of
the instant writ, the Plaintiff
did not find it necessary to
join the applicants: It is they
themselves who, despite their
claim to indemnity, are asking
to be joined.
It is my considered opinion that
it is not necessary at present
to have the applicants before
the Court for the determination
of the matter now before it. I
would dismiss the application.
A.K.B. AMPIAH
JUSTICE OF THE SUPREME COURT
BAMFORD-ADDO, J.S.C:
I agree.
BAMFORD-ADDO (MRS)
JUSTICE OF THE SUPREME COURT
ACQUAH, J.S.C:
I agree.
G.K. ACQUAH
JUSTICE OF THE SUPREME COURT
AKUFFO, J.S.C:
I also agree.
SOPHIA AKUFFO (MISS)
JUSTICE OF THE SUPREME COURT
ATUGUBA, J.S.C.:
The facts of this application
have been set out in the ruling
that has preceded mine.
The applicants herein apply
under R.45 of the Supreme Court
Rules, 1996 (C.I. 16) for
joinder as co-defendants.
Rule 45 (4) of C.l.16 provides:
“The Court may, at any time on
its own motion or on the
application of a party, order
that any other person shall be
made a party to the action in
addition to or in substitution
for any other party.” (emphasis
supplied)
The application is grounded on a
common contention by the
applicants as revealed by their
affidavits in support of their
application that (a) Section 15
of the Divestiture of State
Interest (Implementation) Law,
1993 (P.N.D.C.L 326), the
validity of which the plaintiff
challenges in this case creates
an indemnity for the applicants
in the discharge of their
functions against Court
proceedings and (b) that they
are therefore directly affected
by the action.
The plaintiff resists the
application on the ground that
“the interest of the applicant
is not and cannot be different
from the interest of the State
or government which is being
defended by the
Attorney-General", that their
joinder “may unduly delay the
trial, create substantial danger
of confusing the issues and or
otherwise be inconvenient” and
lastly that the “DIC has no
legal capacity to bring this
application.” (emphasis
supplied).
What is the test for joinder of
parties to an action in this
Court?
I must point out that the
wording of Rule 45 (4) of C.I.16
is wider than its counterpart in
the High Court of this country
which is substantially the same
as its English counterpart, and
which has received extensive
judicial consideration here and
in England. The English
counterpart of the rule is
R.S.C., Ord 15, r.6, of which
the relevant provisions are:
“(2) At any stage of the
proceedings in any cause or
matter the court may on such
terms as it thinks just and
either of its own motion or on
application ………….(b) 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 cause
or matter may be effectually and
completely determined and
adjudicated upon be added as a
party ....”
There has been much judicial
wrestling here and in England
over whether this rule should be
given a narrow or wide
construction. The encyclopaedic
judgment of Taylor J (as he then
was) in BONSU v. BONSU (1971)
G.L.R. 242 has treated that rule
fully. Taylor J in that case
held at p.258 that the narrow
construction put on it by Devlin
J (as he then was) in AMON v.
RAPHAEL TUCK & SONS LTD. (1956)
1 All E R 273 was the correct
one. Devlin J had said: “I
think that the test is:
May the order for which the
plaintiff is asking directly
affect the intervener in the
enjoyment of his legal rights?”
(emphasis supplied).
This narrow construction
received the blessing of
Viscourt Dilhorne in
VANDERVELL'S TRUSTS LTD. V.
WHITE (1971) A.C. 912, H.L at
936 when disagreeing with Lord
Denning M.R's wide construction
of the rule at the Court of
Appeal from which the appeal
came to the House of Lords, he
said: “The Rule does not give
power to add a party whenever it
is just or convenient to do so.
It gives power to do so only if
he ought to have been joined as
a party or if his presence is
necessary for the effectual and
complete determination and
adjudication upon all matters in
dispute in the cause or matter,"
(emphasis supplied). This is
much to the same effect as
Taylor J's criticism of a
similar wide construction of the
Rule by Hayfron-Benjamin J (as
he then was) in OHENE v.
PRINCIPAL SECRETARY, MINISTRY OF
FINANCE (1971) 1 GLR 102.
It will however be noticed that
unlike the rule for joinder at
the High Court, r. 45 (4) of
C.I.16 aforesaid is not on its
face, circumscribed by any
limitations. In my view, the
Legislature which is deemed to
know the Law intended in r.45
(4) of C.I. 16 to free this
Court from any preordained
circumscriptions which
bedevilled the application of
the rule for joinder as it
pertains to the High Court. That
being so the wider test applied
by Lord Denning M.R. at the
Court of Appeal in VANDERVELL
TRUSTS LTD. VRS. WHITE, supra,
is rather germane to the
construction of R. 45 (4) of
C.I. 16. Lord Denning had said:
“We will in this Court give the
rule a wide interpretation so as
to enable any party to be joined
whenever it is just and
covenient to do so. It would be
a disgrace to the law that there
should be two parallel
proceedings in which the
selfsame issue was raised,
leading to different and
inconsistent results. It would
be a disgrace in this very case
if the special commissioners
should come to one result and a
judge in the Chancery Division
should come to another result as
to who is entitled to these
dividends." (emphasis supplied)
Again Lord Denning M.R. in
GURTNER VRS. CIRCUIT (1968) 1
All E R 328 C.A. at 332 said:
“It seems to me that, 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 in
his pocket, 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 determined and
adjudicated upon’ between all
those directly concerned in the
outcome.” (emphasis supplied).
Supporting this view Lord
Diplock said at p.336:
“Clearly the rules of natural
justice require that a person
who is to be bound by a Judgment
in an action brought against
another party and directly
liable to the plaintiff on the
judgment should be entitled to
be heard in the proceedings in
which the judgment is sought to
be obtained. A matter in
dispute is not, in my view,
effectually and completely
“adjudicated upon” (my italics)
unless the rules of natural
justice are observed and all
those who will be liable to
satisfy the judgment are given
an opportunity to be heard.”
(emphasis supplied).
These sentiments are similar to
those echoed in DZABA III VRS.
TUMFUOR (1978) GLR 18 and
repeated in BOATENG VRS.
DWINFUOR (1979) GLR 360 C.A at
369 where Anin J.A. (Apaloo C.J
and Francois J.A. concurring)
said:
“........ the general rule is
that the grant of a declaratory
relief is discretionary and
ought to be exercised with care
and caution and judicially, with
regard to all the circumstances
of the case and except in
special circumstances it should
not be exercised unless all
interested parties are present.”
(emphasis supplied). This
obviously means that all
interested parties ought, except
in special circumstances, to be
joined as parties to a
declaratory action such as the
sort in this case. Similarly as
this court constituted solely by
Kpegah J.S.C. said in EKWAM v.
PIANIM (No.1) 1996-97) S.C.
G.L.R. 117 at 118:
“The application was initially
brought ex-parte but following
representations made on behalf
of the NPP to be heard on the
matter? I ordered it served as
an interested party since it
will undoubtedly be affected by
the orders of this court. For it
is the duty of this court to
keep the door to the shrine of
justice wide open rather than to
close it.” (emphasis supplied)
Applying these principles, the
contention of the plaintiff that
the interest of the applicants
and the state is the same is
unacceptable. The question, on
the authorities cited supra, is
whether the applicants will be
affected in the enjoyment of
their right by the result of
this case and whether therefore
the ends of natural justice
require that they, as
interveners in this action,
should be heard. In AGYEI VRS.
APRAKU (1977) 2 GLR 10 Roger
Korsah J held that in a
representative action a member
of the class represented by the
Plaintiff can nonetheless apply
in his individual capacity for
joinder to the action.
Nor can I accept the plaintiff’s
contention that the joinder of
the applicant's “may unduly
delay the trial, create
substantial danger of confusing
the issues and/or otherwise be
inconvenient.” (emphasis
supplied). This grievance is
speculative and cannot be
accepted. As Taylor J said in
BONSU VRS. BONSU, supra, at 253,
unspecified embarrassment is not
a ground for refusing joinder.
Nor, he said, is inconvenience
per se a ground for refusing
joinder where valid grounds are
shown for it. Similarly in
USSHER v. DARKO (1977) 1 GLR 476
C.A. at 485 Apaloo C.J. (Lassey
and Kingsley-Nyinah JJ.A.
concurring) said:
“To shut him out in a suit in
which, (as the judge must have
known) his interest was vitally
affected on the unproven ground
of dilatoriness was wrong. As
to the judge’s reason that his
joinder would unduly prolong the
trial, I cannot see it. This was
not by any means a long or
complicated trial. There is no
special reason why this suit
should be disposed of
precipitately. The property is
dispute was not a perishable
asset.” (emphasis supplied)
Continuing between, pp. 485 and
486 Apaloo C.J explained "the
object which the rules as to
joinder were designed to achieve
namely, the avoidance of
multiplicity of actions on the
same subject matter. In
Montgomery Vrs. Foy, Morgan &
Co. (1895) 2 Q.B 321, C.A Lord
Esher M.R. delivering the
leading judgment on Order 16,
r.11 of the English Rules of the
Supreme Court said at p. 324:
I can find no case which decides
that we cannot construe the rule
as enabling the Court under such
circumstances to effectuate what
was one of the great objects of
the Judicature Acts namely,
that, where there is one subject
matter out of which several
disputes arise, all parties may
be brought before the Court, and
all those disputes may be
determined at the same time
without the delay and expense of
several actions and trials.’
In Bentley Motors (1931) Vrs.
Lagonda, Ltd. (1945) 14 L.J. Ch.
208, it was held that one of the
main objects of Order 16 r 11 is
to enable the court ‘effectually
and completely to adjudicate
upon and settle all questions
involved’ so as to render
unnecessary multiplicity of
proceedings. Indeed the
jurisdiction of the court to
join a party under Order 16 r.11
may be exercised at any stage
of the proceedings, so long as
anything remains to be done in
the action; see IVES VRS. BROWN
(1919) 2 ch 314. It can be
exercised even after an
admission of liability by one of
two possible defendants and even
after judgment, though all that
remains is the assessment of
damages: see The Duke of
Buccleuch (1892) P.201, C.A. Our
rules as to joinder are no
different in language or
objective from the English
rules."
From all the above, it can be
seen that some of the principles
for joinder evolved out of the
restrictive rule for joinder at
the High Court are applicable to
the construction of r. 45 (4) of
C.I. 16 and would justify the
grant of the applicants’ prayer
for joinder in this case.
Indeed in Ekwam Vrs. Pianim
(No.2) (1996-97) S.C.G.L.R. 120
the plaintiff in an action in
this Court sought a declaration
that the defendant was not
qualified to contest the
Presidential elections under the
1992 constitution. This court
suo motu joined the New
Patriotic Party (NPP) and the
Attorney-General as defendants
to the suit. As stated by Edward
Wiredu J.S.C. at p. 126 “By an
order of this Court dated 5th
March, 1996, the
Attorney-General and the New
Patriotic Party (NPP) were made
parties to the case and were
ordered to be served with all
relevant papers filed in the
case.” It was the NPP which had
vetted and cleared the defendant
Mr. Pianim as a person qualified
to contest for election as the
party's presidential candidate
for the national elections of
1996. It is quite clear, that
the interest of Pianim the
original defendant in the case
was the same as the NPP in that
case, but the latter was
nonetheless joined to the suit
as a party likely to be affected
by the decision in that case.
At the stage of the joinder all
papers by the parties had been
filed and judgment could have
been given thereon. That joinder
was made no doubt by virtue of
r. 45 (4) of the Rules of this
Court then contained in C.I. 13,
1970 which identically with the
present rule 45 (4) of C.I. 16
provided as follows;
“The Court may at any time on
its own motion or on the
application of a party, order
that any other person be made a
party to the action in addition
to or in substitution for any
other party (emphasis
supplied).
In reaching this conclusion I am
not unmindful of the view of
Abban J. (as he then was) in
AEGIS SHIPPING CO. LTD. VRS.
VOLTA LINES LTD. (1973) 1 GLR
438 at 443, that no matter
whether a narrow or wide
construction is given to the
rule (at the High Court) for
joinder, in the final analysis
it is a matter of discretion for
the Court having regard to the
circumstances of the particular
case whether to join a person to
a cause or matter. This is true
also of r.45 (4) of C.I.16, but
for the reasons I have given
supra, I cannot agree that the
joinder of the applicants to the
action before this court is
unnecessary. The whole issue
before this Court is the
validity of P.N.D.C.L 326 which
will vitally affect both the
defendants (the state) and the
applicants in the enjoyment of
the immunities conferred on each
of them respectively by that
Law.
Of course in the case of the DIC
a further issue would have had
to be cleared by it, namely
whether it is a legal person
that can be sued. I do not need
to go into that matter since the
majority decision to the effect
that its joinder is unnecessary
in this case renders that issue
academic.
It is for all the reasons given
supra, that I unhappily had to
chart a solitary path of
dissent.
W.A. ATUGUBA
JUSTICE OF THE SUPREME COURT
COUNSEL
Mr. Stanley Amarteifio for
Applicant.
Mr. Ntrakwa and Miss Irene
Dankwa for Respondent. |
