COLLINS KOJO KUMEDZRO vs. BENJAMIN ASHIE NII KWE AND DAVID TETTEH [2020]DLHC10411

Date	2020-05-04
Suit No.	SUIT NO.: LD/0195/2020
Citation No.	[2020]DLHC10411

HER LADYSHIP JUSTICE ELLEN VIVIAN AMOAH

[2020]DLHC10411
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													<main id="main" class="content" style="min-height: 60rem" >COLLINS KOJO KUMEDZRO<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>BENJAMIN ASHIE NII KWE AND DAVID TETTEH<o:p></o:p>(DEFENDANTS)<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

</div>CORAM:<o:p></o:p>HER
LADYSHIP JUSTICE ELLEN VIVIAN AMOAH&nbsp; <o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNoSpacing" align="center" style="text-align:center;line-height:150%;
tab-stops:4.5pt;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div>&nbsp;When
faced with an order 4 application pursuant to CI 47 there are two ways of
approaching the matter.There is what is called the restrictive approach
favoured by Ampiah JSC in the case of Sam
v Attorney General, Ampiah JSC adopted a restrictive approach when he
stated, <o:p></o:p>“Generally speaking the court will make all such changes in respect of
parties as may be necessary to enable an effectual adjudication to be made
concerning all matters in dispute.&nbsp; 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.... but
this would depend on the issue before the court that is the nature of the claim”<o:p></o:p>&nbsp;This approach is
juxtaposed by the attitude to joinder by Kpegah JSC in the case of Ekwan No. 1 (1996/97) SCGLR who urged
a wider approach when he ordered, in that case for an exparte application
to be served on the New Patriotic Party because it would be affected.<o:p></o:p>&nbsp;Atuguba JSC in the
case of Tsatsu Tsikata v The Republic
2007/08 SCGLR made a fine point that <o:p></o:p>“a court has the inherent jurisdiction to join a person to proceedings
before it in which such person is interested as a party or without such joinder
order the proceeding to be served on him to enable him to be heard on the
matter as such interested party or to be served on a person as an amicus curiae
whether such person be interested in the subject matter or not; and provided
his presence can assist the court to resolve the issue at hand.... the common
test in all these situations is the interest of justice”.<o:p></o:p>&nbsp;In fact Atuguba JSC
in Tsatsu Tsikata v Republic 2007/08
SCGLR concluded with this....<o:p></o:p>“It is certainly in the interest of justice that a party
who would be directly affected by the outcome of the dispute before the court
be joined to the proceedings”<o:p></o:p>&nbsp;The
legal position is that in prosecuting civil claims all parties necessary for
the invocation of judicial powers of a court must come before it so as to give
the court jurisdiction to grant the reliefs sought.&nbsp; This was the position in the Nigerian Supreme
Court case of Awoniyi &amp; Ors. V
The Registered Trustees of the Rosicrucian Oder, AMORC (Nig) [2000] 6 SC (pt.
1).<o:p></o:p>&nbsp;As
a court of law and equity the aim of a court in consideration of a joinder
application was to settle matters in a single suit whenever such course was
convenient and could be followed without prejudice to the defendant on the
authority of City Bank v Bretlett 71 Ga.
797 (1883).<o:p></o:p>&nbsp;Therefore
joinder is more or less compulsory in situations where a matter cannot be
determined without the presence of the party.&nbsp;&nbsp;
<o:p></o:p>&nbsp;According to Herbert Brownell Jr. in the Yale Law Journal 28 (1927) everyone
whose interest would be directly affected by the decree was thus an
indispensable or at least necessary party.&nbsp;
He makes a distinction between “a necessary party” and a “proper
party”.&nbsp; He took the view that while
“necessary parties” are so interested in the controversy that they should be
made parties to enable the court to do complete justice – yet if their interest
are separate-able from the rest they are not “indispensable parties”.<o:p></o:p>&nbsp;Etymologically looking at the dichotomy
between the two concepts in a court of law and equity he concluded that a party
is deemed “indispensable” if a court cannot proceed without his input.&nbsp; He relied on the American case of Minnesota v Northern Securities Co. 184 US
199, 22 Sup. Ct.308 [1902].<o:p></o:p>&nbsp;This
motion pursuant to Order 4 Rule 5(2) of
CI 47 was brought by Jellister Amarh Amartey and Nii John Afutu Ashie
seeking to be joined to this matter as defendants. Their application was filed
on the 10/02/2020.<o:p></o:p>Having
perused the 9 paragraph affidavit in support the court finds that in the light
of the legal requirements afore traversed and the apparent interest of the
applicants by virtue of a judgment in suit number L480/99 entitled Nii Andrew
Nikoi Dsane and Jellister Amartey vrs. Nmai Mensah and Amartey Mensah. In
so far as the defendants have an</main>