APENTENG AND OTHERS v. BANK OF WEST AFRICA LTD. AND OTHERS [1961]DLHC595

Date	1961-01-31
Suit No.
Citation No.	[1961]DLHC595

OLLENNU J

NII ODOI ANNAN FOR THE PLAINTIFFS

VICTOR OWUSU FOR THE DEFENDANTS

[1961]DLHC595
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&nbsp;[HIGH COURT, ACCRA]

[1961] GLR 81

DATE: 31ST JANUARY, 1961.

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COUNSEL:&nbsp;&nbsp;

NII
ODOI ANNAN FOR THE PLAINTIFFS.

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OLLENNU, J.

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&nbsp;

[After stating the facts as above, his lordship continued:]
Learned counsel for the applicant drew the court’s attention to the following
words appearing in the said Order 16, r. 11 namely:

“The Court or a Judge may, at any stage of the proceedings ...
order that... the names of any parties, whether plaintiffs or defendants, 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.”

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;

Counsel also cited Woods v. Martins Bank, Ltd. &amp; Anor.1(1), a
case of a claim against a bank and the manager of the bank for damages for
negligence, where it was held that the plaintiff was entitled to recover
against both the bank and the bank manager. Upon the said words of Order 16,
r.11 and the case of Woods v. Martins Bank Ltd. &amp; Anor.2(2) learned counsel
for the applicant submitted that the person sought to be joined is a party
whose presence before the court is necessary as a person who could be liable
jointly with the first defendant bank, his employers.

All that the case of Woods v. Martins Bank Ltd. &amp; Anor.3(3)
decided is that a bank manager who gives negligent advice to the bank’s
customer, causing the customer to suffer damage, may be liable jointly with his
employers in an action for damages for negligence. In my opinion that case is
not a case of joinder and is no authority which can be of assistance to the
court in a matter of this nature.

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.

To arrive at the correct answer in a case like this where the
application is by the defendant and not by a plaintiff, the court must be
guided by certain considerations and principles. The court must first of all,
look at the plaintiff’s writ of summons, his pleadings and the reliefs he
seeks; if the plaintiff makes no claim either directly or inferentially against
the party sought to be joined, or if the claim could succeed without the party
sought to be joined being made a party, the application must be refused. In
other words, would an order for which the plaintiff is asking in the action
directly affect the party sought to be joined, not in his commercial interest,
but in enjoyment of his legal right? See Amon v. Raphael Tuck &amp; Sons.4(4)
If an order in favour of the plaintiff on his claims will not directly affect
the party whom a defendant seeks to have joined, the application will be
refused. In such a case if a defendant requires indemnity against another
party, his proper procedure is to have a third party notice served.

The plaintiffs’ claim in the present suit makes no claim against
the party sought to be joined and the claim is such that if proved, an order
which may be made on it in favour of the plaintiffs cannot by any stretch of
the imagination affect the party sought to be joined in the enjoyment of his
legal right. It is immaterial whether or not the party sought to be joined
could, as a servant, be jointly liable with his employers, as was the case in
Woods v. Martins Bank Limited.5(5) As the writ of summons and the pleadings
filed stand so far, an order in favour of the plaintiffs will not in any way
affect his legal rights. Therefore the person sought to be joined does not fall
within the category of persons “whose presence may be necessary in order to
enable the Court effectually and completely to adjudicate upon and settle all
questions involved in the cause or matter”6(6) now before the court; he cannot
therefore be properly joined as a defendant upon the application of a
defendant. The application for joinder is therefore dismissed with costs.