“No proceedings shall be defeated by reason of misjoinder or non- joinder of any party; and the Court may in any proceeding determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the proceedings” Rule 5(1) of order 4 of the High Court (Civil Procedure) Rules, 2004, CI 47.
“The argument that an appeal is by way of rehearing and therefore the appellate court was entitled to make its own mind on the fact and draw inferences from them might be so, but an Appeal Court ought not under any circumstances interfere with findings of fact by the trial judge except where they are clearly shown to be wrong, or that the judge did not take all the circumstances and evidence into account, or had misapprehended some evidence or had drown wrong inferences without any evidence in support or had or had not taken proper advantage of having seen or heard in support of the witnesses.” Per Bonney v Bonney [1992-1993] GBR 779 SC, applied in the case of, THE REPUBLIC vs. BANK OF GHANA, THE GOVERNOR (BANK OF GHANA) AND 4 ORS. EX-PARTE: BENJAMIN DUFFOUR [SUPREME COURT, ACCRA]
” It is usually the practice that parties may on application join new parties to the suit or persons not parties may apply to join the suit for the sole purpose of fulfilling the objects of the above-quoted rule so that there would not be any multiplicity of suits and thereby allowing the court to completely and effectively determine all the issues in controversy. This is the ideal situation as illustrated by cases like APPLICATION FOR JOINDER, IN RE: DIVESTITURE IMPLEMENTATION COMMITTEE, APPLICANTS; SAME No. 1 v ATTORNEY-GENERAL [2010] SCGLR 102, AGO SAI v KPOBI TETTEH TSURU [2010] SCGLR 762 and USSHER v DARKY [1977] IGLR 476 CA. However, in the absence of the joinder of all the proper parties the trial court’s jurisdiction could not be said to be lacking. The legal effect of the judgment so delivered which binds the grantors also bind the grantees. If the grantees, the applicants herein, had been sued as parties and the grantors, the Ashong Mlitse Family had knowledge of the suit but did not join they equally would have been bound by the judgment. See AKWEI v COFIE [1952] 14 WACA 143 and FISCIAN v TETTEH [1956]. The legal effect of the judgment so delivered which binds the grantors also bind the grantees. If the grantees, the applicants herein, had been sued as parties and the grantors, the Ashong Mlitse Family had knowledge of the suit but did not join they equally would have been bound by the judgment. See AKWEI v COFIE [1952] 14 WACA 143 and FISCIAN v TETTEH [1956]. We do think that the trial judge without joining the applicants as parties and therefore not offering them a hearing did not offend against the rules of natural justice. We therefore proceed to dismiss the application. THE REPUBLIC vs. HIGH COURT, ACCRA EX PARTE SAM OKUDZETO AND OTHERS [SUPREME COURT, ACCRA] CIVIL MOTION NO. J5/68/2017, 24TH OCTOBER, 2018
Similarly, in International Bulk Shipping and Services Ltd. V Minerals and Metals Trading Corp of India and others, [1996] 1 ALLE R1017C.A, Evans L.J delivering the judgment of the court stated at 1023 said: “The general rule is that an action commenced in the name of a non-existent person, or company, is a nullity: see The Supreme Court Practice 1995 vol 1, para 15/6/1, p 201, citing Lazard Bros & Co Midland Bank Ltd [1933] AC 289 at 296, [1932] All ER Rep 571 at 571 at 576 per Lord Wright, Dubai Bank Ltd. V Galadari (No. 4) (1990) Times, 23 February (Morritt J) and Fielding v Rigby [1993] 4 All ER 294 at 297 – 298, [1993] 1 WLR 1355 at 1359.”He continued at 1024 – 1025 as follows: “order 15, r 6: misjoinder and non-joinder of parties. The court’s power to add or substitute a new party cannot be exercised ‘after the expiry of any relevant limitation period’ unless-‘The relevant period was current at the date when proceedings were commenced and it is necessary for the determination of the action that the new party should be added, or substituted’ (ser r 6(5)(a), and this is ‘necessary’ only if-‘the court is satisfied that-(a) the new party is a necessary party to the action in that property is vested in him at law or in equity and the plaintiff’s claim in respect of an equitable interest in that property is liable to be defeated unless the new party is joined’ (see r 6(6)(a). The following sub-paragraphs are not relevant) Rule 6(6)(a) deals with the commonplace situation where the equitable assignee of a cause of action needs to have the assignor in whom the legal interest is still vested as a party to the action if he is to obtain judgment against the debtor. But that is the converse of the present case, where the named plaintiffs are the companies in whom it is asserted, the legal estate was vested and the trustee seeks to be added or substituted, either as the transferee of that legal estate or as the person in whom the beneficial interest is vested. There is no suggestion that the trustee needs to be added so as to avoid the companies’ claims being defeated. But there is a more fundamental objection to the application made under this rule. It is established by authority that the rule does not apply when the proceedings are a nullity, either because the person named as plaintiff died before the writ was issued (see Tetlow v Orela ltd. [1920] 2 Ch 24) or a company plaintiff had been dissolved and ceased to exist as a legal person (see the authorities cited above). The rule clearly contemplates that there is an existing action in which the addition or substitution may be made, and if there is no existing action then it follows that the rule cannot apply.. If the need for the application arises because, mistakenly, the wrong person was named as plaintiff in the writ, or the right person was wrongly named, then the court has power to correct the mistake under Ord 20, r 5, which is the separate application made here. When that is the appropriate order to make then the fact that the action may be a nullity is not relevant and the fact that the limitation period has expired does not prevent the order being made. THE REPUBLIC vs. HIGH COURT, ACCRA, EX-PARTE; GHANA MEDICAL ASSOCIATION [SUPREME COURT, ACCRA] CIVIL APPEAL NO.J5/8/2012, 25TH APRIL, 2012
Much as we agree that the wrong party has been brought to court, we believe that the Court of Appeal should have gone further in view of Order 4 Rule 5 of CI 47 which reads; (1) No proceedings shall be defeated by reason of mis-joinder or non-joinder of any party; and the Court may in any proceeding determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the proceedings. As an appeal is by way of rehearing the Court of Appeal, in our respectful view, was wrong to have given a judgment that sought to defeat the entire proceedings by reason of a misjoinder. It should have gone ahead to exercise its power granted under Order 4 Rule 5(2) when it realized that the Attorney-General was the proper party to have been sued. The said Order 4 Rule 5(2) reads: (2) At any stage of proceedings the Court may on such terms as it thinks just either of its own motion or on application (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; (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. We would therefore order that Attorney General be substituted for the respondent and the case decided on its merits. AMPRATWUM MANUFACTURING CO. LTD. vs. DIVESTURE IMPLEMENTATION COMMITTEE [SUPREME COURT] CIVIL APPEAL NO. J4/2/2009, 29TH JULY, 2009.