Atikpo Vrs. Adjei And 5 Others (E1/04/2024) [2024] GHAHC 300 (10 July 2024)

INTHESUPERIOR COURT OF JUDICATURE INTHE HIGHCOURT OF JUSTICEHELDATHOHOE ON WEDNESDAYTHE 10THDAY OF JULY 2024BEFORE HERLADYSHIP JUSTICEJOAN EYIKING, HIGH COURT JUDGE SUITNO. E1/04/2024 MR. ATIKPOGODFRED - PLAINTIFF/RESPONDENT (HEADOF MADABAJAIFAMILY, SUINGFOR ANONBEHALFOF THE FAMILY) VRS 1.MS. ADJEIDORA - 1ST DEFENDANT 2.MR. ADJEIPHILIP - 2ND DEFENDANT/APPLICANT 3.MR. FIDELIS KUMAAPOTROR - 3RD DEFENDANT/APPLICANT 4.MR. RAKIBU ABDULLAI - 4TH DEFENDANT 5.MR. ADJEIJOHN - 5TH DEFENDANT 6.MR. FELIX OLENU - 6TH DEFENDANT/APPLICANT RULING–MISJOINDER This is an application for and on behalf of the 2nd, 3rd and 6th defendants/applicants hereinafter referred to as applicants praying for an order to misjoin them from the suit. I shall quotethe relevantparagraphs ofthe2nd defendant as follows: 1 3. That the plaintiff instituted this action in this Honourable Court and in electing his defendantselected me asthe 2nddefendant to thesuit. 4. That the land, the subject matter of this action is a land I have no interest in whatsoever. 5.That the 2nd defendant has no property, agents orinterest thereon to warrant being summoned. 6. That this action is unfairly putting an aggravating financial pressure on the 2nd defendant tograpple with. 7.That the 2nd defendant wants to state in categorical terms that he has no interest in theland inquestionand noactionofhis is close tothe landinany way whatsoever. 8. That the 5th defendant in his paragraph 9 of statement of defendant admits he and the 1st defendant are the legitimate owner of the disputed land and never mentioned the2nd defendant. 9.That the 2nd defendant stated this in his own statement of defence paragraph 3that “he doesnothave hands in cultivating orfarmingonthe said land.” 10. That the outcome of this suit would have no bearing on the 2nd defendant in anyway. 11. That electing and selecting the 2nd defendant to this suit was wrongly one and the plaintiff did notdo any properchecks before taking this action. 12. That the 2nd defendant wants to pray the Honourable Court to strike him out of the suit since he has no interest in the land and keeping him as a party to the suit will be a waste of his time, the court’s time and everybody’s time with heavy cost against theplaintiff for me forinconvenience. I shall quote the relevant paragraphs of the 3rd and 6th defendants/applicants applicationas follows: 2 3. That we were summoned before the High Court, Hohoe by the plaintiff to litigate over the said land which we knew nothing about and cannot neither narrate the lineagesnorfounders ofthe said land. 4. That the 3rd and 6th defendants were asked by the 1st defendant to tap palm wine for her at the said land which the plaintiff wrongly suit us jointly and severally by the plaintiff. After the services were rendered to the 1st defendant successfully, she paid us as labourers and that ends it because we do not own any land around or close tothe disputed area. 5. That the plaintiff upon seeing us on the land, the 3rd and 6th defendants working at the disputed land does not mean that we are claiming ownership, or trespassed unto theland forthe motive oflitigating withthe plaintiff. 6. That it would be a waste of time for the plaintiff, to continue to engage the 3rd and 6th defendants coming to court for litigating this land which they do not have any proprietary interest or rights whatsoever over the land and have no title in any manner toclaim the instant land indispute. 7. That we pray fervently to the Honourable court to discontinue or dismiss the suit against the 3rd and 6th defendants for lack of merits and substance to hold them coming tocourt everynowand then. SUMMARY OF SUBMISSION BY THE APPLICANTSAND COUNSEL FOR THE RESPONDENT In their submissions, the 2nd applicant relying on his affidavit in support, submitted that he is not litigating with anyone with respect to the disputed land and that all that the respondent is saying is that they have entered the land and cut down trees whichis nottrue. The 3rd and 6th applicants also relying on the averments in their affidavit in support argued that they have not been onto the disputed land. That it was the 1st defendant 3 who sold palm trees to him. After tapping the palm trees, he left the land and so haveno interestin theland and not litigatingover the land with anybody. In his response on point of law, counsel for the plaintiff/respondent, hereinafter referred to as respondent, argued that the applicants entered the respondent’s family land and committed acts of trespass which will be evidentially proven before the court. That per the statement of defence of the 6th applicant, per paragraph 3, he admits entering the land in dispute and that this implies an admission of entering the land. In paragraph 2 of his statement of defence, he states that he cannot deny or admit paragraphs 8 to 18 of the statement of claim. That by the rules of pleading, that is not a denial but on the contrary an admission, so they cannot now say that theyshould be takenoff thehook. Counsel furthersubmitted that, similarly, in reference to the 3rddefendant/applicant in paragraph 3 of his statement of defence filed on 23/11/2023, he states that he has been asked to work on the land as labourer by the 1st defendant and that by implication he has entered the land in dispute. In respect of the 3rd defendant/applicant, he also concedes the allegation. Counsel contends that the application by the three applicants is unfounded because by their defence, they have entered the land in dispute and that the land belongs to the respondent’s family which they entered without the respondent’s family’s permission. That hiding behind the1stdefendant cannot absolvethem atthis stage because this is notanissue bordering on atoning tenancy and prayed that their application be dismissed for the mattertoproceedaccordingly. ANALYSISANDEVALUATION According tothe 2nd applicant the subject matterofthis actionwhichis aland, he has no interest in it. That per his paragraph 9 of the statement of defence, the 5th defendant admits he and the 1st defendant are the legitimate owners of the disputed land and never mentioned him and he has also stated this in his own statement of 4 defence per paragraph 3 that “he does not have hands in cultivating or farming on the said land” and that the outcome of this suit would have no bearing on him in any way since he has no interest in the land and keeping him as a party to the suit willbe awaste ofhistime, the court’s time andeverybody’stime. Also, according to the 3rd and 6th applicants, they have been summoned before the High Court, Hohoe by the respondent to litigate over the said land which they knew nothing about and cannot neither narrate the lineages nor founders of the said land. That they were asked by the 1st defendant to tap palm wine for her from the said land which the plaintiff has wrongly sued them. That, after the services were rendered to the 1st defendant successfully, she paid them as labourers and that ended it because they do not own any land around or close to the disputed area. That the respondent upon seeing them working on the land, doesnot mean that they are claiming ownership, or trespassed unto the land for the motive of litigating with the respondent as they do not have any proprietary interest or rights whatsoever overthe land and haveno title in anymanner toclaimthe instant landindispute. According to the 2nd, 3rd and 6th applicants they have been wrongly sued and so they have to be disjoined as parties to the suit. Under Order 4 rule 5(2) of CI 47 the Court has the power at any stage of the proceedings either suo moto or on application to order any person who has been improperly or unnecessarily made a party or who forany otherreasonis no longerapartyoranecessary partytocease tobe aparty. The difference between non-joinder and misjoinder of parties is that, in a case of a misjoinder, the suit shall have to be returned for the plaintiff to decide from whom he wants to claim relief, whereas in cases of non-joinder, the suit shall ordinarily be dismissed if there is non-joinder of necessary parties. Such objection not so taken shall be deemed tohave beenwaived. The Merriam Webster dictionary defines misjoinder of a party as an incorrect joinder ofparties in alegalaction. 5 Order4rule 5(2) ofCI 47provides as follows: Order 4rule 5–Misjoinder andNon-joinder of Parties (1) No proceedings shall be defeated by reason of misjoinder or non-joinder of any party; and the court may in any proceeding determine the issues or questions in dispute so far as they affect the rights and interests of the personswho are parties to the proceedings. (2) At any stage of proceedings the Court may on such terms as it thinks just either of its own motion oron application 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 tobe aparty; 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 proceedings are effectively and completely determined and adjudicated upon tobe addedas aparty. Seealso the case ofBOON SEOvrsGATEWAYWORSHIP CENTRE [2009] SCGLR 278at292. This means that under Order 4 rule 5(2) (a) of CI 47 (supra), the court has power to disjoin any person who was a party to a suit as unnecessary party on its own motion or upon application. This is to ensure that all necessary parties are rather joined or maintained. It is therefore under this circumstance that the applicants have brought the instant application for an order to strike out their names as parties to the instant suit, as they allege their presence in the suit is unwarranted since they have no interestsin thesubject matter. It is trite that actions are not defeated because of non-joinder or misjoinder ofparties. In the instant application, the applicants are alleging that they do not have any proprietary interests in the land in dispute and that they went on the land at the 6 behest of the 1st defendant to tap palm wine for her and have no interest whatsoever in the land. Thus, they were hired to do some work for the 1st defendant which they have completed. This means that whatever the applicants did on the land was done atthe behest ofthe 1stand 5th defendantswho haveinterestsinthe land. According to counsel for the respondent, the applicants entered the respondent’s family land and committed acts of trespass. That per the statement of defence of the 6th applicant, per paragraph 3, he admits entering the land in dispute and that this implies an admission of entering the land. That, in paragraph 2 of his statement of defence, he states that he cannot deny or admit paragraphs 8 to 18 of the statement of claim. That by the rules of pleading, that is not a denial but on the contrary an admission, so theycannot nowsay that theyshould be takenoffthe hook. Counsel further submitted that, similarly, in reference to the 3rd defendant, in paragraph 3 of his statement of defence, he states that he has been asked to work on the land as labourer by the 1st defendant and that by implication he has entered the land in dispute. Counsel contends that the application by the three applicants is unfounded because by their defence, they have entered the land in dispute and that the land belongs to the respondent’s family and they entered without the respondent’sfamily consent. The questionthat arises is, aretheapplicants necessary orproperpartiesto thesuit? It is trite that where a person joined to a suit is neither a necessary or proper party, it is a case of misjoinder of parties. However, the general rule is that a suit cannot be dismissed only ontheground ofmisjoinder ofparties. In the case of JONAH v DUODU-KUMI [2003-2004] SCGLR 50, the Supreme Court held that: “Where in fact or law, a person is not a proper party to a suit, then no matter how actively the person had participated in the suit the fact would remain that she was never a proper party………However, it is open to her at any time, however 7 belatedly to dispute the propriety of her having been made a party to the suit, and if she were able to establish that the same is improper, then justice demands that she be struck out as a defendant. Her earlier participation cannot operate in any way toestopp her fromraising the objection……..” Also in the case of YAHAYA & ANOR v SUMMA HOLDING CORPORATION & ANOR (Suit No. H1/48/2005, C.A. unreported) and ASANTE v SCANSHIP GHANA LIMITED [2013-2014] SCGLR 1294 the courts held that the law is that the court is to determine issues between proper parties and that a proper party is anyone who has an interest in the subject matter of a lawsuit or may be affected by the outcome of a judgment or order. The court also stated that, a necessary party is a partywho the court will require that he orshe be broughtinto the suit if he is not yet inthe suit. As submitted by the applicants, the outcome of this suit would have no bearing on them in any way since they have no interest in the land. Further, according to the 3rd and 6th applicants, they have been summoned before the High Court, Hohoe by the respondent to litigate over the said land which they knew nothing about and cannot neither narrate the lineages nor founders of the said land. That they were asked by the 1st defendant to tap palm wine for her at the said land. That, after the services were rendered to the 1st defendant successfully, she paid them as labourers and that ended it because theydo notownany land aroundorclose tothe disputed area. From the above principles and authorities, it is without doubt that the compelling factor in such an application is whether the applicants who wishes to be misjoined fromthe suit have any personalinterest in the outcome of the case or will be affected inany way by the outcomeofthe case? Per Order 4 rule 5(2)(a) of CI 47 and the case of USHER v DARKO (supra) which held that where the presence of the party to the suit would not assist the court in any way to completely and effectually adjudicate or determine the issues in controversy 8 or where the court can conveniently or adequately deal with the case without the party,the application tobe misjoined asapartyought tobe granted. It is clear from the above that the 2nd, 3rd and 6thapplicants were on the land at the behest of the 1st and 5th defendants. They have also stated categorically that they do not have any interest whatsoever in the disputed land. This means that their joinder to the suit is unnecessary. As stated earlier, it is trite that misjoinder of parties is not fataltothe suit. In conclusion, the court has considered the submissions made by the applicants and submissions made by counsel for the respondent and also considered the Rules of Court and cases cited, and applying the general rules to the claim before the court, I amof the view that the fact that apartyhas in one way or the otherbeen onthe land, isnot aground forthat persontobe joined as aparty in thesuit. Also, per the principles in the YAHAYA & ANOR v SUMMA HOLDING CORPORATION & ANOR case (Supra) and ASANTE v SCANSHIP GHANA LIMITED case (supra), the said applicants in my view are not a proper parties in the suit. It is my further view that, the 2nd, 3rd and 6th defendants/applicants were wrongly joined to the suit in person. There is no cause of action against them and thus their presence in the suit is unwarranted. Being on the land at the behest of the 1st and 5th defendants, that alone in my view is not sufficient to make them necessary parties to the suit to assist the court determine or dispose of the matters in dispute effectually and effectively. They are unnecessary parties to the suit as they have categorically admittedthat theyhave no legalorproprietary interestinthe disputed land . For the above reasons, I hold that the applicants’ applications are hereby granted. Therefore their names ought to be struck out as defendants. Accordingly, their names are hereby struck out on grounds of misjoinder. Cost of One thousand Ghana Cedis each is awarded infavourofthe applicants. 9 H/LJOAN E.KING JUSTICEOF THE HIGH COURT APPLICANTSINPERSON OSCARVULORFOR PLAINTIFF/RESPONDENT 10