Alabison Vrs. Aguduawu (E1/8/17) [2024] GHAHC 320 (31 May 2024)

IN THESUPERIOR COURT OF JUDICATURE INTHE HIGHCOURT OF JUSTICEHELDATHOHOE ON FRIDAYTHE 31ST DAY OF MAY2024BEFORE HERLADYSHIP JUSTICE JOANEYIKING, HIGH COURT JUDGE SUITNO. E1/8/17 RICHARD ALABISON - PLAINTIFF/RESPONDENT VRS NELSONAGUDUAWU - DEFENDANT/APPLICANT RULING-JOINDER This is an application for and on behalf of the defendant/applicant hereinafter referred to as applicant for an order joining Christopher Bedie and Mawuse Bedie to the suit as co-defendants and for further orders as the Honourable Court may deem fit. Ishall quote therelevant paragraphs asfollows: 4. That whiles the instant suit is pending final hearing and determination, new foundation trenches have been dug on a portion of the land in readiness to commence a building project. Please refer to Exhibit NA1 and NA2 being photographsofthecurrent activitiesonthe land. 5. That enquiries revealed that the said project was commenced by Christopher Bedie and Mawuse Bedie, a couple who revealed that the said project was being constructed on the authority of Simon Asiamah who intimated to them that he was thehead oftheAguduawo Asiamah family. 1 6. That Christopher Bedie and Mawuse Bedie have ignored all admonitions to them to desist from developing the land as same was not acquired from the rightful representative of the Aguduawo Asiamah family and there is also a pending suit in respect ofthe land. 7. That in order for all matters in controversy to be dealt with once and for all, Christopher Bedie and Mawuse Bedie ought to be joined to the instant suit as co- defendants. The defendant/respondent hereinafter referred to as respondent opposed the application. I shall quotethe relevantparagraphs asfollows: 4. I have been served with a motion on notice to join one Christopher Bedie and Mawuse Bedie to the instant suit and I eagerly and strongly oppose to same as same ismade forthe reasons todelaythe instant case. 5. That one Tabias Kofi Kalai acquired land from defendant/applicant’s family in 1978 and in 1986 Tabias Kofi Kalai sold portions of the said land to plaintiff’s predecessorJoseph Oyewusi. 6. Joseph Oyewusi caused his title in the land acquired to be registered at the Lands CommissionHo, as No.RV:542/88. 7. I instituted this action against the defendant who is not the Head of Asiamah family when he broke my boundary pillars and entered the land and started selling portions of the land to unsuspecting buyers without the consent and the authorisationfromplaintiff’s family. 8. There is already an order from this court restraining both parties from doing anything onthe land till the finaldetermination ofinstant suit 9. That any such developments on the land that injunction has been placed on can onlybe met withcontempt proceedings but not joinder. 2 10. Paragraph 5 of the affidavit in support is denied, in further denial thereto applicant can take steps and sue Christopher Bedie and Mawuse Bedie and their grantor Simon Asiamah and recover his land if only he had title to that land but not tojointhemto theinstant suit. 11. I have been advised by my counsel and verily belief same to be true that ChristopherBedie and Mawuse Bedie arenotnecessary partiesto theinstant suit. 12. That the instant application is only a sham made for the reasons to delay this suit and same is also frivolous and unmeritorious and same treated as the contempt it deservesand applicant mulcted inheavycost deterrent enough. The said parties that the applicant intended to join also filed affidavit in opposition. I shall quotethe relevantparagraphs asfollows: 2.That Iobtained theconsent ofthe second respondenttodepose tothis affidavit. 5.That Mawuse Bedie is my spouse and sister oftheapplicant. 6.That we areopposed to theinstant application seeking tojoin me tothe suit. 7.That we deny paragraph5ofthe affidavit in supportofthe instant application. 8.That we arenot in any way connected tothe constructionworksgoing ontheland. 9. That the said construction works is being undertaken by Mr. and Mrs. Raphael CollyAformaleycurrentlyresiding inthe United StatesofAmerica. 10. That I am neither an agent nor a workman for Mr and Mrs Aformaley who are theowners ofthe disputed land acquired fromthe applicant family. 11. That our participation in this suit shall not in any way help the court to dispose ofthe issue before it. 12.That we praythis HonourableCourtto dismissthe instant application. SUMMARY OF SUBMISSIONBY BOTHCOUNSEL 3 According to counsel for the applicant, as the matter is pending, the two parties were busily constructing on the dispute land claiming ownership as per Exhibits NA1 and NA2. Counsel referred to Order4 rule 5(2)(b) and Order1rule 1(2) ofCI 47 and contends that if the two parties are not joined to the suit, the applicant will be compelled to issue writ against them over the same matter, which the Rules intends toavoidas much aspossible. Commenting on the affidavit in opposition, counsel referred to paragraph 9 of the affidavit in opposition by Christopher Bedie which says that the said construction works is being undertaken by Mr. and Mrs. Raphael Colly Aformaley currently residing in the United States of America. Counsel contends that, that is why the applicant is saying that by the tenets of the rules, the said Mr and Mrs Raphael could be added by the court suo moto. Counsel further submitted that, although the applicant does not believe what the said Christopher Bedie is saying, it is their belief that the presence of Christopher Bedie will assist the court in adjudicating the matter since theyknowthe said Mrand MrsRaphael. Commenting on the affidavit in opposition by the respondent, counsel argued that all that the respondent is saying is that the application for joinder intends to delay the trial and that the suit was commenced in the year 2014 but the trial has not commenced and so to say that joining a party will delay the trial is far-fetched. Counsel further submitted that they are aware that the wheels of justice grinds slowly but will surely get to its destination. However, it is the contention of the applicant that the admission that somebody is on the land whilst the matter is in court,that partyshould be made aparty in orderto assist allparties. On the other hand, counsel for the respondent opposed the application. Counsel submitted that the suit was initiated in 2017 and not 2014 as alleged by counsel for the applicant. That, when the respondent issued the writ against the applicant, in his statement of claim, he did not counterclaim but only told the court that the respondent is not entitled to his reliefs. Counsel further submitted that, he applied 4 for an interlocutory injunction which was granted and an injunction has been placed onbothparties. According to counsel for the respondent, it is the respondent who issued the writ against the applicant and it is the respondent who knows his land very well and has not seen the said Christopher Bedie and Mawuse Bedie on his land and that if there had been any construction, the respondent would have brought them to court for violating a court order and that it is not the applicant who will force the respondent that he should join anotherparty to the suit when they do not have such activities on their land. Counsel contends that the case is ripe for hearing and maintain that the application is brought to delay the trial. Counsel further contends that if the applicant says that the two parties are constructing a building on behalf of one Asiamah who is a member of the defendant’s family, then the defendant can take on the said Asiamah, Christopher and Mawusi if they realise that they are on their land but not to be joined to the suit and that Exhibits NA1 and NA2 is hinged on speculation and should not be given any consideration by the court as such activities are not on the plaintiff’s land and that if such activities are on the plaintiff’s land, they would have taken steps long ago. Counsel submitted that the application is frivolous as well as unmeritorious and same should be dismissed and the applicant mulcted with cost forbringing such frivolousapplication. In a rebuttal, counsel for the applicant submitted that if the respondent is saying that there are no activities going on, on their land, however, the said Christopher says there is construction going on but he is not responsible, the court should take note of thecontradiction and determine theapplication accordingly. ANALYSISANDEVALUATION This is an application for and on behalf of the applicant praying the court for an order to join one Christopher Bedie and Mawuse Bedie to the suit as co-defendants. 5 According to counsel for the applicant, whiles the instant suit is pending final hearing and determination, new foundation trenches have been dug on a portion of the land in readiness to commence a building project. That enquiries revealed that the said project was commenced by Christopher Bedie and Mawuse Bedie, a couple who revealed that the said project was being constructed on the authority of Simon Asiamah who intimated to them that he is the head of the Aguduawo Asiamah family. Ontheotherhand, counsel forthe respondent contendsthat it is the respondent who issued the writ against the applicant and it is the respondent who knows his land very well and has not seen the said Christopher Bedie and Mawuse Bedie on his land and that if there had been any construction, the respondent would have brought them to court for violating a court order and that it is not the applicant who will urge the respondent that he should join another party to the suit when they do nothave such activities ontheir land. Counsel further contends that Exhibits NA1 and NA2 is hinged on speculation and should not be given any consideration by the court as such activities are not on the plaintiff’s land and that if such activities are on the plaintiff’s land, they would have takensteps longago. It is trite that, a plaintiff who conceives that he has a cause of action against a defendant is entitled to pursue his remedy against that defendant and cannot be compelled to proceedagainst other personswhom he has no desire topursue. This is theprinciple in the case ofLETANGvCOOPER [1965] 1QB 232CA. Also in the 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 (Special Edition) 1, the Supreme Court on the issue ofjoinder stated asfollows: 6 “Generally a plaintiff who conceives that he has a cause of action against a defendant is entitled to pursue his case against that defendant and cannot be compelled to proceed against other persons whom he has no desire to pursue. Nevertheless, a person who is not a party may be added as a defendant against the wishes of the plaintiff on his own intervention or on the application of the defendant or in some cases by the court of its own motion. The court has power to add as a party to the proceedings any person not already a party but against whom there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter. The main object of these powers is to allow persons to be added as parties to proceedings so as to prevent multiplicity of proceedings and to enable all necessary and proper parties to be brought to court who would be directly affected by the result of the proceedings.” However, it is provided under Order4rule5(2) (b) ofCI 47as follows: “(2) At any stage of proceedings the Court may on such terms as it thinks just either of its own motion oron 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 proceedings are effectively and completely determined and adjudicated upon to be added as aparty.” The import of this provision is that, the trial court has the power at any stage of the proceedings, either suo motu or by an application to order any person who ought to have been joined, whose presence before the court may be necessary to enable the court effectually and completely adjudicate upon and settle all the issues involved in 7 the cause or matter, to be added as a party. This was explained by the Court of Appeal in the case of USSHER v DARKO [1977] 1 GLR 476, CA per Apaloo JA (as he thenwas) inanapplication forjoinder ofaparty asfollows: “The jurisdiction of a court to join a party to an action to avoid multiplicity of suits under Order 16 rule 11 (The old Civil Procedure Rules -LN 140A) 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 howitshould be exercised.” It was also held by the Supreme Court in the 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 (Special Edition) 1perAninYeboahJSC (as he thenwas) that: “It is trite learning that joinder applications could be brought by either a party to the action or the court may on its own application order a joinder. We may also have a joinder application from a person who comes by way of intervener and not at the behest of either parties or the court on its own motion.That isjoinder ofintervener….” The Order also provides for a person with an interest in a pending case or outcome of the case to apply to be joined to the suit. It also means that the Court has the power to direct that any person whose presence in the suit is necessary, should be made a party to the suit before it. This means that an application for joinder shall be granted where the applicant’s presence would ensure or guarantee that all matters 8 with respect to the suit are affectively and completely determined. This is to avoid multiplicityofsuits asheld by the authorities. On the other hand, where the presence of the applicant in the suit would not assist the court to completely and effectively adjudicate all issues in controversy, then the courtisenjoined torefuse theapplication. The test applied by the courts in determining whether a person should be joined to an action or not is stated by Denning MR in the case of GURNER v CIRCUIT AND ANOTHER[1968] 2QB 587at595as follows: “When two parties are in dispute in an action at law and the determination of the dispute will directly affect a third person in his legal rights or in his pocket, in that he will be bound to foot the bill, then the court in its direction mayallow him to be added as aparty onsuch terms asit 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.” The Supreme Court applied this principle in several cases including SAI v TSURU III [2010] SCGLR 762 and SAM v ATTORNEY GENERAL [2000] SCGLR 102 where the Supreme Court endorsed the test whether the joinder will ensure that all matters in dispute are completely determined. In SAM v ATTORNEY GENERAL (supra) the Supreme Court per Ampiah JSC in delivering the ruling of the majority ofthe court stated asfollows: “Generally speaking, the court will make all such changes in respect of parties as may be necessary to enable 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 joinder, therefore is to enable all 9 matters in controversy to be completely and effectually determined once and for all. But this would depend upon the issue before the court, ie the nature of the claim.” Also in the case of APPENTENG v BANK OF WEST AFRICA LTD. [1961] GLR 81, OllenuJ(as he thenwas) stated asfollows: “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 itwould not, the application should be refused.” Also in his book, Civil Procedure – A Practical Approach by S. Kwami Tetteh, the learnedauthor pointed this outat page151as follows: “The common test for joinder of a necessary party is the interest of justice; and for the intervener the test is whether the joinder would ensure that matters in dispute in the proceedings would effectually and completely be determined and adjudicated upon.” Another test for consideration in an application for joinder is whether the rights and liabilities of the proposed joinder are the same as the defendant if the applicant is being joined as a co-defendant. On the other hand, if the applicant being joined is another plaintiff, the question to address is whether his rights and liabilities are the same as the plaintiff. As ageneralrule, for two or more persons to be joined together as co-plaintiffs or co- defendants in a lawsuit, they generally must share similar rights or liabilities. At common law, a person could not be added as a party unless that person, jointly with the other plaintiff was entitled to the whole recovery of their claim. In the same vein, a person could not be added as a defendant unless jointly with the other defendant, wasliable forthe entire demand. 10 From the above authorities, it is clear that the nature of the case, the nature of the reliefs sought, whether it affects the person sought to be joined, avoidance of multiplicity ofsuits, whether the personseeking to join is a necessary party, thus one whose presence would lead to an effectual and complete adjudication of the matters in controversy before the court, or one whose exclusion would see aspects of the cause ormatterunadjudicated upon, are the mainpointsforconsideration. Further from the authorities, a person who is not a party to an action, who on his own application is joined as a co-defendant is referred to as an intervener. Black’s Law Dictionary (9th Edition) defines an intervener as one who voluntarily enters a pending lawsuit because ofapersonalstakeinit. From the above, the main issue for consideration is whether or not the said Christopher Bedie and Mawuse Bedie could be properly joined to the suit. In other words, aretheynecessary partiesto theproceedings? As held by the authorities, the overriding principle is that all necessary and proper parties should be before the court so as to ensure that all matters in dispute are effectively and completely determined and adjudicated upon. Further, as held in the case of SAM v ATTORNEY GENERAL (supra), the person to be joined would depend on the nature and facts of the case. The question that flows from this is, are the said Christopher Bedie and Mawuse Bedie necessary parties whose presence in the action necessary would ensure that all matters in controversy are effectively and completely adjudicated upon? Counsel for the applicant argued that per the affidavit in opposition by Christopher Bedie, they claim the said construction works is being undertaken by Mr. and Mrs. Raphael Colly Aformaley currently residing in the United States of America and Counsel contends that, the said Mr and Mrs Raphael could be added by the court suo moto. Counsel further submitted that, although the applicant does not believe what the said Christopher Bedie is saying, it is their belief that the presence of 11 Christopher Bedie will assist the court in adjudicating the matter since they know thesaid Mrand MrsRaphael. Order4rule 8ofCI 47provides asfollows: “Rule 8–Actions for possession ofland (1) Without prejudice to rule 5, the Court may in an action for possession of immovable property at any stage of proceedings order any person who is not a party to the action but who is in possession of the immovable property, whether personally in possession or by a tenant or agent, to be made adefendant. (2) An application under this rule by a person in possession of an immovable property in dispute may be made on notice to the plaintiff supported by an affidavit showing that the person is in possession of the immovable property in question and if by a tenant or agent, naming that tenant or agent.” However, in the instant application, the said Christopher Bedie and Mawuse Bedie have denied being on the land and averred that they are not in any way connected to the construction works going on the land and that the said construction works is being undertaken by Mr. and Mrs. Raphael Colly Aformaley currently residing in the United States of America. They further submitted that they are neither an agent noraworkmanforMrand MrsAformaley. This means that as the said Christopher Bedie and Mawuse Bedie have denied being in possession of the disputed land, the court cannot order them to be parties since their presence would not assist the court determine all matters in controversy effectually. Commenting on the affidavit in opposition, counsel referred to paragraph 9 of the affidavit in opposition by Christopher Bedie which says that the said construction works is being undertaken by Mr. and Mrs. Raphael Colly Aformaley currently 12 residing in the United StatesofAmerica. Counsel contendsthat, the said Mr and Mrs Raphael could be added by the court suo moto. Counsel further submitted that, although the applicant does not believe what the said Christopher Bedie is saying, it is their belief that the presence of Christopher Bedie will assist the court in adjudicating themattersince theyknowthe said Mrand MrsRaphael. The principle of law is that where two parties are in a dispute before a court of competent jurisdiction and the determination will directly affect a third party either inhis pocketorright orwould be required tomake acontributioneither in cash orin kind then the court ought to exercise its discretion in favour of that applicant since by so doing all matters in controversy would be effectually and completely determined between all those concerned in the court. This was the situation in the case of EKWAM v PIANIM (NO.1) [1996-97] SCGLR 117 which the order for joinder was by the court. The Supreme Court per Kpegah JSC held as follows: “Although the application was brought ex parte, the New Patriotic Party (NPP) should be “served as an interested party since it will undoubtedly be affected by the ordersofthis court.” The question is, as the said Christopher Bedie and Mawuse Bedie have denied being on the disputed land and the respondent being the plaintiff has also confirmed that there are no activities on the disputed land, are the said Christopher Bedie and Mawuse Bedis necessary parties whose presence in the action is necessary to ensure that all matters in controversy are effectively and completely adjudicated upon as required by the authorities supra? Again, will the outcome or orders of the court affect the said ChristopherBedie and Mawuse Bedie? The plaintiff who brought the defendant to court says that the parties the applicant intendsto join arenot onthe disputed land, and so,the questionis, if theyarejoined, how would their presence assist the court in determining the issues set down for trialbetweenthe plaintiff and the defendant? 13 Again, the plaintiff/respondent who issued the writ against the applicant, has stated that there is no activity on the disputed land. The question is, will the said Mr and Mrs Raphael be affected by the outcome of the suit as the plaintiff claims there are no activities on the disputed land? As there are no claims directly or inferentially against the said Mr and Mrs Raphael, and the issues set down for trial are not directed at them, the question is, what are they going to respond to if and when they arejoined totheproceedings? 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. As the authorities have held, 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 and can either join the lawsuit or be brought into the suit by a party to the suit, but whose presence is not essential in orderfor thecourt toadjudicate the rightsofthe otherparties. As counsel for the respondent submitted, in the substantive matter, per the reliefs being sought by the respondent, the applicant did not counterclaim for declaration of title to the land among others and that the applicant only claimed that the respondentis notentitled to the reliefbeing sought. In the case of KANNIN v KUMAH & OTHERS [1959] GLR 54 the court held that without a counterclaim a defendant is not entitled to a declaration of title i.e. the defendant cannot be declared ownersofthe propertyindispute. As stated earlier in SAM vrs ATTORNEY GENERAL (supra) “that the purpose of 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, ie the nature of the claim” and also the case of APPENTENG v BANK OF WEST AFRICA LTD. (supra) that “In an application for joinder, the 14 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 not, the application should be refused and per Order 4 rule 5(2) ofCI 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 or where the court can conveniently or adequately deal with the case withoutthe party, the applicationtobe joined asapartyought tofail. From the above principles and authorities, it is without doubt that the compelling factor in such an application is whether the party who is to be joined to the suit has any personal interest in the outcome of the case or will be affected in any way by the outcome of the case. In my view the fact that a person’s name has been mentioned in a suit, is not a ground for that party to be joined as a party. The cases of YAHAYA & ANOR v SUMMA HOLDING CORPORATION & ANOR (Supra) and ASANTE v SCANSHIP GHANA LIMITED(supra)refers. Counsel for the applicant contends that the court can suo moto join the said Mr and Mrs Raphael to the proceedings. However, I find that when the respondent who is the plaintiff in the substantive suit, averred that the said activities is not on the land indispute, the applicant failed to challenge this assertion. Further, the Exhibits NA1 and NA2 that the applicant attached as evidence of activities on the disputed land, has been denied by the respondent as not being the land in dispute. Further the court is unable to determine at this stage that indeed it is the same land in dispute. In the case of ZAMBRAMA v SEGBEDZI (1991) 2 GLR 221 per Kpegah J.A. (as he then was) held that: “…..A person who makes an averment or assertion, which is denied by his opponent has the burden to establish that his averment or assertion is true and he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely beinferred. 15 In the instant application, the applicant failed to discharge this burden for the court toinfer thatindeed ExhibitsNA1 andNA2 referstotheland indispute. In conclusion, upon considering the motion paper, the affidavit in support, the affidavit in opposition and the submissions made by counsel for the applicant and counsel for the respondent, and applying the general rules to the claim before the court, Itherefore find it prudent torefuse the application, the reasonbeing that I find the application unmeritorious. The said Christopher Bedie, Mawuse Bedie, Mr. and Mrs Raphael Afomaley are not necessary parties to assist the court determine or dispose of the matters in dispute effectually and effectively. It is my further view that the court can conveniently or adequately determine the issues without their presence in the suit as parties. The application hereby fails and same is dismissed. Cost of Two Thousand Ghana Cedis (GHC2,000.00) is awarded in favour of the plaintiff and the parties Christopher Bedie and Mawuse Bedie. The matter will thereforetakeitsnormalcourse. H/LJOAN E.KING JUSTICEOF THE HIGH COURT EMILEATSU AGBAKPEFOR DEFENDANT/APPLICANT ERNESTDELAAKATEY FORPLAINTIFF/RESPONDENT 16