HOTEL DE TEXAS AND ANOTHER vs. STATE INSURANCE COMPANY LIMITED [2017]DLHC4156

Date	2017-07-24
Suit No.	SUIT NO. OCC 49/2016
Citation No.	[2017]DLHC4156

DR. RICHMOND OSEI-HWERE HIGH COURT JUDGE

KWAME ADOM APPIAH FOR PLAINTIFFS/APPLICANTS

TONY MMIEH FOR THE RESPONDENT

[2017]DLHC4156
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													<main id="main" class="content" style="min-height: 60rem" >HOTEL DE TEXAS AND
ANOTHER<o:p></o:p>vs.<o:p></o:p>STATE INSURANCE COMPANY LIMITED<o:p></o:p>&nbsp;[HIGH COURT
(COMMERCIAL DIVISION), KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT&nbsp;NO. OCC 49/2016&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: 24TH JULY, 2017<o:p></o:p>

</div>COUNSEL:
<o:p></o:p>KWAME ADOM APPIAH FOR
PLAINTIFFS/APPLICANTS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</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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</div><p class="MsoNormal" align="center" style="margin-top:1.45pt;margin-right:0in;
margin-bottom:0in;margin-left:0in;margin-bottom:.0001pt;text-align:center;
mso-pagination:none;mso-layout-grid-align:none;text-autospace:none"><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;mso-pagination:none;mso-layout-grid-align:none;text-autospace:
none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;
mso-padding-alt:0in 0in 1.0pt 0in">RULING<o:p></o:p>

</div>This is an application
praying the honourable court for an order aimed at joining Engas Company
Limited to the present suit as a co-defendant.<o:p></o:p>BACKGROUND<o:p></o:p>The background to this
application is that the Plaintiffs on 28th November, 2008 took a
writ of summons against Engas Ltd in this court and judgment was delivered in
favour of the Plaintiffs on 30th March, 2012. The Plaintiff
subsequently served entry of judgment on Engas Ltd through its officials and
notwithstanding the service, Engas has refused or failed to pay the judgment
debt. This compelled the Plaintiffs to sue the insurers of Engas as well as
Sampson Gambrah-Sampene and Gabriel Gambrah-Sampene who are directors of Engas.
Upon an application the court subsequently struck out the names of Sampson
Gambrah-Sampene and Gabriel Gambrah-Sampene as unnecessary parties to the suit.
The plaintiffs are therefore praying to join Engas Ltd to the pending action
against State Insurance Company Limited, the insurers of Engas Limited.<o:p></o:p>SUBMISSIONS BY COUNSEL FOR
THE APPLICANTS<o:p></o:p>Counsel moved the
application in terms of the motion paper and its affidavit as well as the
annexures. Counsel stated that they were relying on Order 4 rule 5(1) and Order
4 rule 5 (2) (b) of the High Court Civil Procedure Rules, 2004 (C.I. 47).
Counsel submitted that they were seeking to join Engas Limited, as Engas has
refused or failed to pay the judgment debt in spite of the information handed
to the Plaintiffs by the Defendant that they as insurers have fully paid Engas
Limited. Counsel submitted that it is difficult to enforce judgment against
Engas as their operations have gone underground and they are no longer
operating from their known premises. It is therefore necessary to join Engas to
the suit to test the credibility of the claim that they have been paid by their
insurers. He submitted that Engas is a necessary party to the instant suit and
that joining the company will enable the court determine all matters in dispute
and avoid multiplicity of action. He cited the case of Tsatsu Tsikata vs the
Republic [2007/2008] SCGLR 702, holding 1 and emphasized that in the interest
of justice a party could be joined to a suit. He further submitted that so long
as the Defendant remains in the matter as insurers of Engas Limited and the
obligations of the latter towards the Plaintiffs have not been discharged, the
insured (Engas) cannot therefore be left out in a post judgment proceedings
against the insurer. He prayed the court to grant the application.<o:p></o:p>SUBMISSIONS BY COUNSEL FOR
THE RESPONDENT<o:p></o:p>Counsel for the
Respondent, Engas Limited opposed the application. He submitted that applicants
are seeking to join the Respondent in a bid to execute the judgment of the
court. Counsel submitted that the rational for joinder is to save time, costs
and avoid multiplicity of action. He argued that the fact that
plaintiffs/applicants have already instituted action to enforce the judgment of
the court against the Respondent makes the joinder of the latter amount to a
multiplicity of action. He submitted that per Order 4 rule 5(2) joinder is only
applicable when the Respondent is said to be a necessary party to the suit and
that Engas is not a necessary party to the present suit since the joinder will
not resolve the problems the applicants are complaining of.<o:p></o:p>Counsel submitted that the
solution to applicants’ problem lies in Order 43 of CI 47 which provides the
ways to enforce judgment of the court. He submitted that when a statute lays
down the procedure for carrying out an activity, it is only that procedure that
ought to be followed. On this point, he relied on the cases of Ashkar v Karam
(1972) 1GLR 1, 5 and Ayikai v Okaidja III [2011] 1SCGLR 205, 208 and argued
that execution of judgment is a procedure and same must be followed.<o:p></o:p>Counsel also argued that
there is no cause of action against Engas Limited to entitle the applicants’ to
join them to the suit. He argued that the averment in paragraph 9 of the
statement of claim does not give rise to a new cause of action against the
Respondent. Under paragraph 9 of the statement of claim, the Plaintiffs averred
that it was difficult to enforce the judgment against Engas Limited since the
operations of the company have gone underground. He submitted that all what the
suit is seeking to achieve is to get the Defendant indemnify the plaintiff and
that the law does not permit applicants to join the insured. He further
submitted that the option available to the applicants is to enforce the
judgment against Engas Limited. He prayed the court to dism</main>