EDEM AFFRAM vs. BERNARD OWUSU-TWUMASI AND OTHERS [2016]DLHC3584

Date	2016-11-30
Suit No.	SUIT NO.ACC/44/2015
Citation No.	[2016]DLHC3584

HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT

[2016]DLHC3584
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">EDEM AFFRAM<o:p></o:p></a>vs.<o:p></o:p>BERNARD OWUSU-TWUMASI AND OTHERS<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL
DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

SUIT
NO.ACC/44/2015&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;DATE: 30TH NOVEMBER, 2016 <o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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RULING<o:p></o:p>

</div>This is the ruling of the court in respect of the
application filed by the Applicant seeking an order of the court to be joined
to the action as 2nd plaintiff under Order 4 Rule 5 of the High
Court (Civil Procedure) Rules, C.I 47.<o:p></o:p>In the affidavit in support of the application, the Applicant
deposed to the fact that he and the 1st Defendant/Respondent
together incorporated the 2nd Defendant Company. He averred that he
subscribed to twenty five million shares (25,000,000) in the 2nd
Defendant Company and he was also named director at the incorporation of the 2nd
Defendant Company. He avers that he is a member of the 2nd Defendant
Company as he has never transferred his interest in the company. And hence his
prayer to be joined to the suit as 2nd Plaintiff.<o:p></o:p><o:p>&nbsp;</o:p>The Court by an Order dated 26th July, 2016
granted the application. The Defendants/Respondents applied to set aside the
Order of the Court joining the Applicant as 2nd Plaintiff on the
ground that the affidavit in opposition filed by the Defendants/Respondents was
not brought to the attention of the Court to aid the Court to come to a
decision on the ascertained facts from both sides. <o:p></o:p>In this application, the Defendants/Respondents in an
affidavit deposed to by their counsel claim that Applicant is not a shareholder
of the 2nd Defendant company as by a letter dated the 28th
September, 2007 he requested a refund of his capital contribution and same has
been given him. Defendant/Respondents say that the Applicant had also
voluntarily resigned from his directorship of the company. It is therefore
their contention that since the Applicant is neither a Director of the 2nd
Defendant company by virtue of his voluntary resignation and had also recovered
all the equity he had contributed as a subscriber, he is not a proper party to
be joined to the action.<o:p></o:p><o:p>&nbsp;</o:p>JOINDER<o:p></o:p>Order 4 rule 5(2) of
the High Court (Civil Procedure) Rules states as follows:<o:p></o:p><p class="MsoNormal" style="mso-margin-top-alt:auto;mso-margin-bottom-alt:auto;
text-align:justify;line-height:115%;mso-pagination:widow-orphan;mso-layout-grid-align:
auto;punctuation-wrap:hanging;text-autospace:ideograph-numeric ideograph-other">At
any stage of proceedings the Court may on such terms as it thinks just either
of its own motion or on application<o:p></o:p><p class="MsoNormal" style="mso-margin-top-alt:auto;mso-margin-bottom-alt:auto;
text-align:justify;line-height:115%;mso-pagination:widow-orphan;mso-layout-grid-align:
auto;punctuation-wrap:hanging;text-autospace:ideograph-numeric ideograph-other">(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 to be a
party;<o:p></o:p><p class="MsoNormal" style="mso-margin-top-alt:auto;mso-margin-bottom-alt:auto;
text-align:justify;line-height:115%;mso-pagination:widow-orphan;mso-layout-grid-align:
auto;punctuation-wrap:hanging;text-autospace:ideograph-numeric ideograph-other">(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 a party”.<o:p></o:p>This
principle has received judicial blessings in many cases. In COLEMAN v SHANG [1959] GLR 390-409 the
court in deciding an application for joinder under the old civil procedure
rules held that: <o:p></o:p>“The purpose of
Order 16 rule 11 is to secure the determination of all disputes relating to the
same subject matter without delay, and without expenses of separate actions.”<o:p></o:p>VAN LARE J.A. AS C.J. cited with approval the dictum of Lord Esher thus; <o:p></o:p>