NYONKOPA COCOA BUYING COMPANY LTD vs. UNICOM COMMODITIES COMPANY LIMITED AND ABDUL-RAHMANI MAHAMA [2017]DLHC4160

NYONKOPA COCOA BUYING COMPANY LTD vs. UNICOM COMMODITIES COMPANY LIMITED AND ABD... [2017]DLHC4160

Date	2017-07-17
Suit No.	SUIT NO. OCC 52/2017
Citation No.	[2017]DLHC4160

DR. RICHMOND OSEI-HWERE HIGH COURT JUDGE

FRANK KWADWO OTOO FOR THE PLAINTIFF/APPLICANT

KAMIL MOHAMMED IDDRISU FOR THE DEFENDANT/RESPONDENT

[2017]DLHC4160
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													<main id="main" class="content" style="min-height: 60rem" >NYONKOPA COCOA BUYING
COMPANY LTD<o:p></o:p>vs.<o:p></o:p>UNICOM COMMODITIES
COMPANY LIMITED AND ABDUL-RAHMANI MAHAMA<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;
padding:0in 0in 1.0pt 0in;margin-left:0in;margin-right:.1in">

SUIT&nbsp;NO. OCC 52/2017&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: 17TH
JULY, 2017<o:p></o:p>

</div>COUNSEL:
<o:p></o:p>FRANK KWADWO OTOO FOR THE
PLAINTIFF/APPLICANT<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>It is provided under Order
12 rule 5 (1) of the High Court (Civil Procedure) Rules, 2004 (CI 47) as
follows:<o:p></o:p>“Where
a defendant who makes a counterclaim against the plaintiff alleges that any
other person, whether a party to the action or not, is liable to the defendant
together with the plaintiff in respect of the subject-matter of the
counterclaim; or claims against such other person any relief relating to or
connected with the original subject-matter of the action, the defendant may
join that other person as a party against whom the counterclaim is made.”<o:p></o:p>The root cause of this
application is an ancillary claim, in the form of a counterclaim which has been
filed by the defendant, Unicom Commodities Company Limited. The counterclaim
was not only against the plaintiff but also against Abdul-Rahmani Mahama who
was not previously a party to the suit. The latter is referred under the title as
“2nd Defendant to the Counterclaim”.<o:p></o:p>The court’s records show
that the 2nd Defendant to the Counterclaim has not been served with
the Defendant’s statement of defence and counterclaim. Consequently, there is
no “entry of appearance” for and on behalf of the 2nd Defendant to
the Counterclaim. <o:p></o:p>The Plaintiff has, however,
filed the present application to as it were strike out the name of the said 2nd
Defendant to the Counterclaim on grounds of misjoinder. Indeed, the Plaintiff has
filed the application on its own and has never purported to act on behalf of
the 2nd Defendant to the Counterclaim. It is apparent that the
application if successful may ultimately benefit the 2nd Defendant
to the Counterclaim in spite of the plaintiff/applicant’s allegation that the
counterclaim against the former is likely to delay the suit and increase the
costs of the proceedings. The court is predisposed to entertain an application
of this nature, as it has the power under Order 1 rule 1(2) of CI 47 to control
its process to ensure speedy and effective justice devoid of multiplicity of
proceedings. In view of this, a court is entitled to determine on the
application of a defendant to counterclaim whether a counterclaim may properly
be brought against any defendant to the counterclaim. However, such application
can only be entertained if the said defendant to the counterclaim who is the
subject of the application has been made a proper party to the suit within the
meaning of Order 12 rule 5 of CI 47.<o:p></o:p>Order 12 rule 5(2)of CI 47
provides:<o:p></o:p>“Where
a defendant joins a person as a party against whom the defendant makes a
counterclaim, the defendant shall add that person's name to the title of the
action and serve that person a copy of the counterclaim.”<o:p></o:p>It is also provided under Order
12 rule 5(7) of CI 47 that:<o:p></o:p>“A
person on whom a copy of a counterclaim is served under subrule (2) shall, if
the person is not already a party to the action, become a party to it as from the time of service, with the same
rights in respect of defence to the counterclaim and otherwise as if the person
had been duly sued in the ordinary way by the person making the counterclaim.”
[Emphasis mine]<o:p></o:p>The combined effect of the
above provisions is that Abdul-Rahmani Mahama can only be made a party to the
suit when he is duly served with a copy of the counterclaim. As it stands now
he has not been duly served per the record of the court and as such he could
not be described as a proper party to the suit. It is, therefore, unnecessary
to strike out his name on grounds of misjoinder. It is only when Abdul-Rahmani Mahamahas
been duly served that the Plaintiff can properly pursue the application to
strike out his name as the 2nd Defendant to the counterclaim. Due to
the nonservice, the plaintiff has no standing on which it could prosecute this
application and the court is also not clothed with the jurisdiction to
determine it on its merits.<o:p></o:p>The issue of nonservice of
a process is not a mere irregularity which could be cured by Order 81 of CI 47,
although Order 81 confers a wide discretion on the court to rectify
irregularities. Service of court processes is so fundamental that i</main>