HIGH COURT, KUMASI
DATE: 26 JULY 1971
TAYLOR J.
CASES REFERRED TO
(1) Apenteng v. Bank of West Africa [1961] G.L.R. 81.
(2) Atid Navigation Co., Ltd. v. Fairplay Towage & Shipping Co., Ltd. [1955] 1 W.L.R. 336; 99 S.J. 235; [1955] 1 All E.R. 698.
(3) The Germanic [1896] P. 84; 65 L.J.P. 53; 73 L.T. 730; 44 W.R. 394, C.A. (4) Arthur-Badoo v. Kastanias, Court of Appeal, 9 March 1970, unreported.
(5) Montgomery v. Foy, Morgan & Co. [1895] 2 Q.B. 321; 65 L.J.Q.B. 18; 73 L.T. 12; 43 W.R. 691; 11 T.L.R. 512, C.A.
(6) Norbury Natzio & Co. v. Griffiths [1918] 2 K.B. 369; 87 L.J.K.B. 952; 119 L.T. 90, C.A.
(7) Bentley Motors (1931) Ltd. v. Lagonda [1945] 2 All E.R. 211; 114 L.J.Ch. 208; 173 L.T. 87; 89 S.J. 294.
(8) Fardell Traction Haulage Co. v. Basset (1899) 15 T.L.R. 204, C.A.
(9) Amon v. Raphael Tuck & Sons [1956] 1 Q.B. 357; [1956] 2 W.L.R. 372; [1956] 1 All E.R. 273.
(10) McCheane v. Gyles (No. 2) [1902] 1 Ch. 911; 71 L.J.Ch. 446; 86 L.T. 217; 50 W.R. 387; 46 S.J. 359.
(11) Moser v. Marsden [1892] 1 Ch. 487; 61 L.J.Ch. 319; 66 L.T. 570; 40 W.R. 520; 36 S.J. 253; [1891-1894] All E.R. Rep. 458, C.A.
(12) Vavasseur v. Krupp (1878) 9 Ch.D. 351; 39 L.T. 437; 27 W.R. 176; 22 S.J. 702, C.A. (13) Samuel v. Samuel (1879) 12 Ch.D. 152; 47 L.J.Ch. 716; 26 W.R. 750.
(14) Apollinaris Co. v. Wilson (1886) 31 Ch.D. 632; 55 L.J.Ch. 665; 54 L.T. 478; 34 W.R. 537; 2 T.L.R. 355, C.A.
(15) Debenture Corporation v. Murrieta (1892) 8 T.L.R. 496.
(16) Watson v. Cave (No. 1) (1881) 17 Ch.D. 19; 44 L.T. 40; 29 W.R. 433, C.A. (17) Dix v. Great Western Railway Co. (1886) 55 L.J.Ch. 797; 54 L.T. 830; 34 W.R. 712. (18) Coleman v. Shang [1959] G.L.R. 390, C.A.
(19) Ohene v. Principal Secretary, Ministry of Finance [1971] 1 G.L.R. 102.
(20) Jones v. Manchester Corporation [1952] 2 Q.B. 852; [1952] 1 T.L.R. 1589; 116 J.P. 412; [1952] 2 All E.R. 125, C.A.
(21) Semtex Ltd. v. Gladstone [1954] 1 W.L.R. 945; 98 S.J. 438; [1954] 2 All E.R. 206.
(22) Lister v. Romford Ice and Cold Storage Co. [1957] A.C. 555; [1957] 2 W.L.R. 158; 121 J.P. 98; 101 S.J. 106; [1957] 1 All E.R. 125, H.L. affirming sub nom. Romford Ice and Cold Storage Co. v. Lister [1956] 2 Q.B. 180; [1955] 3 W.L.R. 631; [1955] 3 All E.R. 460.
(23) Wilson, Sons & Co. v. Balcarres Brook Steamship Co., Ltd. [1893] 1 Q.B. 422; sub nom. Wilson, Son & Co. v. Kikick, 62 L.J.Q.B. 245; 68 L.T. 312; 41 W.R. 486; 4 R. 286, C.A.
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(24) Gardiner v. Moore [1969] 1 Q.B. 55; [1966] 3 W.L.R. 786; [1966] 1 All E.R. 365; 110 S.J. 34.
NATURE OF PROCEEDINGS
APPLICATION by the defendants under Order 16, r. 11 for an order to join as third defendants the Popular Merchants Co.. Ltd. in an action in which the plaintiff was suing the defendants for libel. The facts are fully set out in the judgment.
COUNSEL
Dr. W. C. Ekow Daniels for the applicants.
B. Akainyah for the respondent.
JUDGMENT OF TAYLOR J
On 19 July 1971 I refused an application by the defendants-applicants and I reserved my reasons for so
refusing to today. I did so because this application before me brought under Order 16, r. 11 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A.), involved a point of procedure of rare occurrence and does not seem to me to have been dealt with in the past in any way that can be properly described as full. I took the view that if it is fully dealt with such applications by tortfeasors will continue to be as rare here as they have been in England. The one local case directly in point which I came across, namely, Apenteng v. Bank of West Africa [1961] G.L.R. 81 to be dealt with later on in this judgment does not appear to have been vigorously argued although in its result the similar application therein made suffered the same fate as the application herein and for reasons which although short and concise are in my respectful opinion right.
With this preliminary observation I now proceed to give the full reasons why the application was refused. This is a motion by the defendants-applicants hereinafter called the applicants praying for an order of this court that a certain limited liability Company, the Popular Merchants Co., Ltd., be joined as third defendants to this action in which the plaintiff-respondent hereinafter referred to as the respondent is claiming by his writ the rather colossal sum of N¢50,000.00 damages for libel jointly and severally against the said applicants. The respondent by his counsel has vigorously opposed the application and in my view it is necessary to refer to the relevant paragraphs of the pleadings in order to understand the reasons for the application and why the respondent has so vehemently opposed it. The exercise will also high-light the issues and enable the court to decide whether this is a proper case for joinder.
In his detailed statement of claim of twelve paragraphs filed on 8 April 1971, the respondent averred in paragraphs (3) and (4) as follows:
“(3) By a letter dated 22 February 1971 titled ‘suspension of appointment’ and circulated to, inter alia, officials of the Barclays Bank D.C.O., Kumasi, Mr. Osei Bonsu, Junior, and the accountant of the second defendants falsely and maliciously published or caused to be published, of and concerning the plaintiff, and of him in the way of his said office and/or business as such deputy managing director of the second defendants and in relation to his conduct therein the
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following words: ‘Certain information has reached us which requires investigation into. In view of this, it has been decided to suspend your appointment with immediate effect, to enable us investigate into the information.
PARTICULARS
(4) By the words complained of in paragraph (3) herein, the defendants meant, and were understood to mean, that the plaintiff is not suited to the post of deputy managing director or director of the second defendants and/or that the plaintiff in his capacity as such director had so misconducted himself in a dishonest and/or fraudulent and/or disreputable manner as to justify the said suspension.”
This is one head of claim. Another head of claim was formulated in paragraphs (5) and (6) as follows: “(5) By another letter dated 30 March 1971 titled Re: T.A.T. Co., Ltd. v. Yourself and circulated, inter alia, to Mr. Osei Bonsu, Junior, director, the accountant, and secretary, respectively of the second defendants, the defendants falsely and maliciously published or caused to be published, of and concerning the plaintiff and of him in the way of his said office and/or business as such deputy managing director and/or director and/or servant of the second defendants and in relation to his conduct therein the following words: ‘The board has been reviewing your stewardship of recent date and has been unsatisfied with the revelations that have come to light.
When you were offered appointment with the company, you undertook to discharge your duties honestly, satisfactorily and to observe strictly the rules and regulations governing the establishment. Revelations of yours in regard to your stewardship show that you have not kept your word. For example, you took delivery of 1,449 cartons of Peak milk from Messrs. G. B. Ollivant Co., Ltd., as
per their sales invoice No. 91825 on 24 June 1970, and yet only 800 cartons were invoiced to the Popular Merchants Co., Ltd.
This is a serious offence, and the board has decided that unless a satisfactory explanation is given by you within 48 hours of the receipt of this letter, you are to regard yourself as having forfeited the trust entrusted to you.
Take notice that if you do not furnish a satisfactory explanation of the allegation mentioned herein, you are to regard yourself as having been dismissed summarily on grounds of misconduct, in respect of the matters raised herein with effect from the 31st day of March, 1971.’
PARTICULARS
(6) By the words complained of in paragraph (5) herein the defendants meant and were understood to mean that the plaintiff is or was not suited to the post of deputy managing director or director of the second defendants and/or that the plaintiff in his capacity as such
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director and/or servant of the second defendants and/or in relation to his conduct therein had so misconducted himself in a dishonest and/or fraudulent and/or disreputable manner and/or stolen goods belonging to the defendants as to justify the said summary dismissal.”
The third and last head of claim was stated in paragraphs (8) and (9) as follows:
“(8) In the issue of the Pioneer newspaper dated 2 April 1971 in an advertisement titled ‘Notice’ the defendants falsely and maliciously printed and published or caused to be printed and published, of and concerning the plaintiff, the following words: ‘Notice is hereby given to the public that Mr. Osei Tutu Bonsu of Accra and Kumasi is no longer in the employment of the following companies viz:
(a) Timber and Transport Co., Ltd.
(b) Popular Merchants Co., Ltd.
(c) Bantama Electric Bakery Co., Ltd.,
with effect from today.
Any member of the public or an incorporated body which transacts any business with the said person for and on behalf of the above-mentioned companies as from the date hereof, does so at his own risk. The three companies are with effect from the date hereof not bound by any such transactions.
Dated this 31st day of March, 1971.’
PARTICULARS
(9) By the words in paragraph (8) herein the defendants meant and were understood to mean that the plaintiff had been legally dismissed by the defendants in the companies mentioned in the said publication or that the plaintiff had himself severed completely his association with the said companies, and that despite such dismissal or severance of association, the plaintiff was fraudulently, dishonestly, disreputably or feloniously transacting business with the public on behalf of the said companies and that it was necessary to warn the unsuspecting public against the fraudulent activities of the plaintiff.”
The libel complained of is therefore alleged to be in respect of the said two letters and the above advertisement in the Ashanti Pioneer. In their defence the defendants practically admitted writing the two letters, but they denied that the letters were defamatory and pleaded that the occasion of the publication of the said letters was in each case one of qualified privilege and in respect of the letter dated 30 March 1971 they averred that its contents were true and proceeded to justify it as follows in paragraph (5) of the defence:
“(5) The defendants say that the words set out in paragraph (5) thereof are true in substance and in fact in their natural and ordinary meaning without the alleged meaning alleged in paragraph (6) of the
statement of claim.
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PARTICULARS
(i) The plaintiff issued Popular Merchants the defendants’ company cheque No. 179423 dated the 22nd day of June, 1970 to Messrs. G. B. Ollivant (Ghana) Ltd. for the purchase of 1,499 cartons of Peak milk and 717 bags of U.S.S.R. granulated sugar but only 800 cartons of Peak milk were received by the Popular Merchants Co. as per the following particulars.
Takoradi Store 350 cartons invoice No. 134 of 1/7/70
Kumasi Store 150 cartons invoice No. 200 of 30/6/70
Sunyani Store 300 cartons invoice No. 324 of 4/7/70.
The shortage thus stands at 699 cartons of Peak milk and 717 bags of sugar valued at N¢5,349.30 and N¢6,811.50 respectively.
(ii) There is also an invoice from G. B. Ollivant (Ghana) Ltd. of the supply of 164 cartons of Ovaltine to the Popular Merchants Co., Ltd. but the records kept under the direction and control of the plaintiff only show the receipt of 60 cartons of Ovaltine which were collected not by the Popular Merchants Co. or their agents but by a stranger thus depriving the defendants’ company of the sum of N¢816.00.
(iii) The Popular Merchants Co., Ltd. of whom the plaintiff was an effective employee received an advice notice confirming an order for 202 cartons of Asepso. Only 92 cartons were collected in the name of Popular Merchants Co., Ltd., by a stranger not an agent or employee of the said company and per waybills No. 53203 and 53204 for 55 cartons each on the 15th of September, 1970. Thus depriving the defendants’ company of the sum of N¢3,510.00.
(iv) Out of the 97 cartons of Milo which were meant for the Popular Merchants Co., Ltd. of which the plaintiff was the effective employee as per G. B. Ollivant advice No. G.W.C. 46A of the 24 March 1970 only 92 cartons were supplied to the store as per invoice No. 107373 of the 2nd of November, 1970. Thus depriving the defendants’ company of 5 cartons of Milo at N¢26.20 per carton totalling N¢131.00.
(v) The defendants [sic] have failed to give an explanation on or accounted for the plaintiff cheque No. 154279 for the sum of N¢3,735.00 authorised to be paid to one Kwabena Tuffour who has no address in respect of 45 cases of cartridges alleged to be supplied to the defendants.
(vi) There is confirmation by letter dated 10th March 1971 from Messrs. G. B. Ollivant that the sum of N¢627.02 was paid to the plaintiff in his capacity as an employee of the Popular Merchants Co., Ltd. the defendants’ company on import licence No. XO. 7836 for which the plaintiff has failed to account to the defendants’ company contrary to his duty of good faith and honesty owed to the company.
(vii) Again there is also confirmation by letter dated 11th March 1971 from Messrs. G. B. Ollivant that the sum of N¢140.00 was
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paid to the plaintiff on licence No. G. 02181 for which the plaintiff has also not accounted contrary to his duty of good faith and honesty owed to the company.”
The defendants then counterclaimed for special and general damages:
“The defendants repeat paragraph (5) (i)-(vii) inclusive of their statement of defence and say that by virtue of the breaches of conduct on the part of the plaintiff in connection with work entrusted to him by the defendants’ company, the defendants have suffered damage, loss of profits.”
They then claimed and gave details of special damages of N¢24,844.62 arising out of the averments in paragraph (5) of the defence.
The plaintiff in reply before taking out summons for directions averred, inter alia, “that the occasions were not privileged and/or that in any event the defendants acted with malice towards the plaintiff.”
It is noteworthy that with the exception of the averment in paragraph (5) (v) of the defence, all the other averments in paragraph (5) are in respect of claims made on behalf of the Popular Merchant Co., Ltd., described in the defendants’ pleadings as “defendants’ company” whatever that means. With regard to the averment in paragraph (5) (v), I cannot help feeling that there is probably a typographical error and the defendants meant no doubt to aver that the plaintiff has failed to give an explanation or account for the defendants’ cheque. As herein formulated it does not seem to make sense to me and I do not see how it can ground any claim. In the absence of amendment I will ignore it in this decision. Thus ignored the matters referred to as grounding the counterclaim are clearly in respect of claims that the defendants as claimants are not themselves entitled to make because they arose out of a contractual obligation said to exist between the plaintiff and the said Popular Merchants Co., Ltd.; the defendants are strictly speaking strangers to the transaction and their claim on behalf of the company is misconceived.
This is no doubt the reason why the defendants have sought to have the said company joined as third defendant to the suit so that as third defendants the company can counterclaim. The defendant are proceeding under Order 16, rr. 11 and 13 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A).
Order 16, r. 11 provides as follows: [His lordship here read the provisions of the Order as set out in the headnote and continued:]
And rule 13 thereof is as follows:
“Where a defendant is added or substituted, the writ of summons shall be amended accordingly and the plaintiff shall, unless otherwise ordered by the Court or a Judge, file a copy of the writ as amended, and serve the new defendant with such amended writ or notice in lieu of service thereof in the same manner as original defendants are served, and the proceedings shall be continued as if the new defendant had originally been made a defendant.”
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The grounds of the application and the arguments advanced by Dr. Ekow Daniels counsel for the applicants are twofold and they are neatly summed up in paragraphs (5) and (6) of the affidavit in support of the motion for joinder. They are as follows:
“(5) That having regard to the foregoing as well as the defendants counterclaim the Popular Merchants Co., Ltd. are the parties directly affected by this action and in the interests of justice it would be better to avoid a multiplicity of action by allowing this joinder. (6) That it has become clear from the pleadings that the Popular Merchants Co., Ltd. ought to be joined to this action since their presence before the court is necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in this action.”
This motion has been resisted by Mr. Akainyah for the respondent on grounds, first that it is only in a case where the matters in controversy cannot be effectively disposed of that a third party can come in. He submitted further that the purpose of adding the third party is obviously to pursue a counterclaim and this he submits the court has no power to do if the presence of the third party is not necessary for the determination of the issues as pleaded between the plaintiff and the defendants. He cited the case of Atid Navigation Co., Ltd. v. Fairplay Towage & Shipping Co., Ltd. [1955] 1 All E.R. 698 in an argument that deserves and will be given serious consideration in the judgment. And furthermore he submitted that the joinder would embarrass the respondent and that on the authority of The Germanic [1896] P. 84, C.A. the joinder ought not to be allowed if it would thus embarass the respondent.
I propose to deal first with the argument as to embarrassment. Apart from merely citing the headnote of The Germanic (supra) and stating simply that the plaintiff would be embarrassed, the nature of the embarrassment and how it would arise if joinder were permitted was not alluded to. It is therefore necessary to examine the facts and the decision of The Germanic (supra) to appraise the argument relating to embarrassment.
In The Germanic (supra) the plaintiffs the owners of a steamship brought an action in rem against the owners of another steamship The Germanic for damages to their steamship by reason of a collision. The owners of The Germanic as defendants delivered a defence and counterclaimed and included in their defence an allegation of compulsory pilotage. The plaintiffs then applied for liberty to add as a defendant the pilot who was compulsorily in charge of The Germanic at the time of the collision. The President of the Probate, Divorce and Admiralty Division granted the application on the ground that no difficulty would arise from engrafting a claim in personam on an action in rem. On appeal to the Court of Appeal (Lord Esher M.R., Lopes and Rigby L.JJ.) the decision was reversed. At p. 84 of the report in the headnote interpreting the decision of the Court of Appeal the editor noted that the ratio of the Court of Appeal in reversing the decision was that “assuming there was jurisdiction, the order ought not, as a matter of discretion, to be made, as the trial of the
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action might thereby be embarrassed.” it seems to me that this rather condenses unduly the ratio decidendi of the case which a careful reading of the judgments of the panel does not seem to support.
Lord Esher M.R. in his judgment reversing the decision of the President drew attention at p. 89 to the fact that the joinder of the pilot in the suit would “lead to great inconvenience” whereas non-joinder “would lead to no real inconvenience” and concluded that in such a case as the matter involved the exercise of discretion the course of conduct which would not lead to inconvenience is to be preferred. He drew attention to the inconvenience which joinder would cause: The pilot would have a right to request a trial by jury while the action in rem against the ship and the owners would be tried by a judge and assessors. It seems therefore that the judgment of Lord Esher was based on nothing but the inconvenience specified in the case which would result from joinder. He did not at anytime refer to embarrassment. He took the view that one should look at the result of joinder. At p. 90 he summed up his view in the last concluding sentences of his judgment that:
“I think, therefore, that on the one side there is every probability of inconvenience, and on the other side no inconvenience at all; and no valid ground has been shewn why the pilot should be joined. I think, therefore, the proper discretion which ought to have been exercised was to refuse the application.”
Lopes L.J. was of a similar opinion. At p. 91 he said:
“There would be, as it were, almost two trials going on concurrently, and I cannot see how the matter could be carried out with any amount of propriety. On the one side there seems to me to be serious inconvenience which may have to be encountered, and, adopting the other view, no inconvenience or difficulty at all. What is the alternative? It appears to me that the Court has only one course to pursue, and that is to pursue that course which is surrounded by no difficulties.”
It was in that judgment of Lopes L.J. that the word “embarrassment” occurred once in the following sentence at p. 90: “It seems to me if we grant the application to join the pilot it would be a highly inconvenient course, and one which would cause embarrassment when the action came to be tried.
It is obvious therefore that Lord Esher and Lopes L.J. and indeed Rigby L.J. looked at the probable result of joinder and concluded (Esher M.R. and Lopes L.J.) that it would cause a great inconvenience and for that matter joinder be refused. Rigby L.J. said as follows at p. 91 that: “we must look to the probable result of joining the pilot. That the case could then be tried as one case seem to me most improbable. I think, therefore, that in this case it is not desirable that he should be joinded.”
Of course from the language of Lord Esher it seems clear that inconvenience per se would not have been decisive if valid grounds have been shown why the pilot should be joined.
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It is equally obvious that an opposition to joinder purely on the ground of embarrassment without indicating or specifying the nature of the embarrassment can hardly be a reason to disallow joinder. In Arthur-Badoo v. Kastanias, Court of Appeal, 9 March 1970, unreported, the judge of the High Court had refused an application for joinder and Sowah J.A. delivering the decision of the Court of Appeal observed (emphasis mine): “The judge in her discretion refused the application, though it is difficult to see what harm or embarrassment the joinder would have caused. “
It seems therefore that merely alleging embarrassment is not enough. It is my view therefore that from a consideration of this Court of Appeal case and a careful analysis of the case cited by counsel embarrassment whatever it connotes in the context of this case it certainly cannot per se operate to disallow joinder. In fact in The Germanic case (supra) joinder was disallowed mainly on grounds of specified inconvenience but in this case where the nature of the embarrassment is not indicated, the submission relating to embarrassment is clearly misconceived. I am afraid I am unable to decide this case on that ground because the ratio decidendi in The Germanic is that where the court has a discretion as indeed it has in cases of joinder that discretion ought to be exercised in such a way as to avoid real not alleged inconveniences. I have not been shown the inconvenience which will result from joinder and so The Germanic and the embarrassment argument are inapplicable.
Counsel also submitted that there was no jurisdiction to order joinder where the primary purpose of so asking for the order is to enable a counterclaim to be prosecuted and his authority for this proposition is Atid Navigation Co., Ltd. v. Fairplay Towage & Shipping Co., Ltd. [1955] 1 W.L.R. 336. There is no doubt that in this case Wynn-Parry J. did indeed decide and used language which seemed to suggest that there is no jurisdiction to join a party for the sole purpose of enabling the party joined to pursue a counterclaim. At p. 338 he decided in unambiguous language. He said:
“I know of no authority which goes so far as saying that the court would make an order, as asked in this case, merely to enable the proposed interveners to join with the existing defendants in prosecuting a counterclaim. Indeed it appears to me that there is no jurisdiction to make such an order.”
Of course the decision of Wynn-Parry J. in the case referred to could have been based and was also based on a refusal to exercise a discretion assuming there was jurisdiction, in favour of the applicants having regard to the peculiar facts, but Wynn-Parry J. chose as well to base the decision squarely and primarily on what he conceived to be his lack of jurisdiction. I am not sure that I agree with him. But of course that is beside the point. The gravamen of the view of Wynn-Parry J. if I understand it would seem to be that there is no jurisdiction to make an order of joinder if the sole purpose of the defendant’s application is to add another defendant
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so that as defendants they can counterclaim, and this indeed it would seem is the interpretation which counsel for the plaintiff has sought to put on the decision. Now if that is a correct appraisal of his views then there are at least three cases decided by the Court of Appeal in England which would seem to decide the contrary and one of them was cited to Wynn-Parry J. but he did not refer to it in his judgment. The cases are: Montgomery v. Foy, Morgan & Co [1895] 2 Q.B. 321, C.A.; Norbury Natzio & Co. v. Griffiths
[1918] 2 K.B. 369, C.A. and Bentley Motors (1931) Ltd. v. Lagonda Ltd. [1945] 2 All E. R. 211.
In the first case Montgomery v. Foy, Morgan & Co., cited to Wynn-Parry J. the plaintiff’s ship carried a cargo to London on behalf of the British Sawmills company. The defendants had no property in the cargo but were the consignees of the cargo merely for sale. When the ship arrived in London, as the consignees were delaying in taking delivery, the plaintiff’s agent placed the cargo in the custody of a warehouseman with a notice that it was subject to a lien for freight in a specified sum, under the provisions of sections 493 and 494 of the Merchant Shipping Act, 1894 (57 & 58 Vict., c. 60 ‘ ). In order to obtain possession of the cargo the consignee deposited the amount of freight due with the warehouseman with a notice to retain it under section 496 of the Merchant Shipping Act, 1894. Whereupon the plaintiff brought an action against the defendants for a declaration of title to the money deposited and for an order that the said sum of money should be paid to him. The British Sawmills company claimed to be entitled to damages against the plaintiff for short delivery and injury to the cargo and an application was made on behalf of the said Sawmills company and the defendants for an order that the said company be added as defendants in order that the said company might counterclaim against the defendants. Mathew J. in chambers granted the application and on appeal to the Court of Appeal the defendants were not called upon and the court unanimously dismissed the appeal. Lord Esher M.R., Kay and A. L. Smith L.JJ. were unanimous in holding that there is jurisdiction under Order 16, r. 11 to order that the company should be added as defendants in order that they might pursue their counterclaim as that would enable the court to determine the “question involved in the cause or matter” within the rule. Since this case was cited to Wynn-Parry J. in Atid Navigation Co., Ltd. v. Fairplay Towage Shipping Co., Ltd. [1955] 1 W.L.R. 336 at p. 337, it is curious that at p. 338 of the report Wynn-Parry J. should assert as I have already quoted that he knew of no authority which sanctioned joinder for the purpose of enabling the interveners to pursue a counterclaim.
In the second case Norbury Natzio & co. v. Griffiths [1918] 2 K.B. 369, C.A., the defendant was an executor and together with his co-executor, S. A. Vasey, as executors sold a printing business to the plaintiffs on certain terms. As a result of negotiations, effected by the defendant, the plaintiffs did some work not in consonance with the agreed terms but on new terms. The plaintiffs later sued the defendant for breach of contract on the new terms. In his defence the defendant admitted the
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sum claimed but averred that it was a sum due jointly from him and his co-executor as executors and he counterclaimed for himself and his co-executor, for an amount exceeding the plaintiffs’ claim. On the application of the plaintiffs the master struck out both the defence and counterclaim on the ground that the co-executor was not a party to the action. The defendant appealed to Bray J. for the order of the master to be set aside. He applied that the plaintiffs should be ordered to join his co-executor as co-defendant so that the two of them could bring a counterclaim against the plaintiffs. Bray J. refused the application. On appeal the Court of Appeal, Pickford, Warrington and Scrutton L.JJ. were unanimously of opinion that the fact that the defendant desired to have his alleged joint contractor added as a co-defendant in order that they might thereupon bring a joint counterclaim against the plaintiffs was regarded by the court as an additional ground for making the order of joinder.
Wynn-Parry J. in the Atid case (supra) adverted to this case but distinguished it on the ground that the Court of Appeal proceeded primarily on the basis that the transaction was a joint contract reserving to the trial court the question whether or not it was in fact a joint contract. I do not think that that distinction is of any moment. The question of the joint contract was indeed reserved to the trial court and Warrington L.J. in subscribing to the views of Pickford L.J. said at p. 378:
“I have nothing to add to the judgment of Pickford L.J., whose caution I desire to imitate in abstaining from saying anything which might tend to prejudice the consideration at the trial of the two questions whether the contract upon which the plaintiffs sue is joint or several, and whether the defendant is a party in the same right to the contract upon which he desires to bring his counter-claim as to that upon which the plaintiffs claim.”
It seems to me that although the judges did not specifically say so their over-riding considerations must have been to ensure that the court effectually and completely adjudicate upon and settle all the questions involved in the action. This must be so because of the order which was in fact made. Upon the authority of Fardell Traction Haulage Co. v. Basset (1899) 15 T.L.R. 204, C.A. the co-defendant S. A. Vasey was ordered to be joined and the further order was made at p. 380:
“the defendants be then at liberty to bring a counter-claim jointly against the plaintiffs, and that the plaintiffs are not to be prejudiced by such joinder if it should be held that the contract sued upon was not a joint contract and that the said S. A. Vasey is not liable thereon, and in that case the defendant Fred Griffiths is to pay the co-defendant S. A. Vasey his costs subject to any right of contribution one may have against the other.”
It seems to me therefore that although this case was cited to Wynn-Parry J. he did not seem to me to have grasped its ratio decidendi fully. The language of the judgments must have misled him to think that it rested merely on probable joint contract whereas having regard to the
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inconclusive nature of the joint contract the judgment is obviously based on a jurisdiction to permit counterclaim for the purpose of having the matters actually involved effectually and completely adjudicated upon. Of course as far as the intervener is concerned his purpose of asking for joinder will be to pursue his counterclaim.
The third case is Bentley Motors (1931) Ltd. v. Lagonda Ltd. [1945] 2 All E.R. 211. It is not necessary to advert to the facts. Joinder was ordered in the case on the application of the defendant, and the co-defendant (one Mr. Bentley) was accordingly added. The practical effect of so adding the co-defendant was to enable him to pursue a counterclaim. Evershed J. (as he then was) at p. 212 propounded the question involved in the case thus:
“The question on this summons resolves itself, therefore, into this, whether Mr. Bentley should be left to obtain, if he can, his remedy in separate proceedings, or whether he should now be joined as a party to the present action in order that he may, by counterclaim, seek therein to enforce his contract with the plaintiffs.”
Having regard to the terms of Order 16, r. 11 he answered the question in the afffirmative and continued: “The circumstances of this case therefore fall, in my judgment, within the terms of the rule … I think that the joinder of Mr. Bentley is necessary in order that the court may effectually and completely adjudicate upon and settle all the questions involved in the claim by the plaintiffs. . .”
And he concluded his judgment citing Montgomery v. Foy, Morgan & Co., (supra) with this further assertion at p. 213:
“Nor, in my opinion, is it material, if the circumstances in other respects justify the joinder, that the plaintiff in the action should not prefer any claims against the party joined and that the practical effect of the joinder is so that the party joined may assert his case by way of counterclaim against the plaintiff.”
Bentley Motors (1931) Ltd. v. Lagonda (supra) was unfortunately not cited to Wynn-Parry J. in the Atid case and although the decision in Atid case refusing joinder may not be wrong, the view of Wynn-Parry J., if his view was that there is in fact no jurisdiction to order joinder for the sole purpose of accommodating a counterclaim, is in my opinion not borne out by an examination of the three authorities discussed above. As formulated, however, and this may very well be what he meant — Wynn-Parry J.’s
view may be concerned not so much with the intention or purpose of the interveners or defendants seeking joinder, but with the primary reason of the court permitting the joinder. He did not use the word purpose and may very well mean to say that if the sole and only reason the court has, for ordering joinder is to enable the interveners to counterclaim then there is no jurisdiction to order joinder. This with respect will be right because as Devlin J. (as he then was) said in Amon v. Raphael Tuck & Sons [1956] 1 All E. R. 273 at p. 279, “The beginning and
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end of the matter is that the court has jurisdiction to join a person whose presence is necessary for the prescribed purpose and has no jurisdiction under the rule to join a person whose presence is not necessary for that purpose.” Counterclaim is not one of the prescribed purposes in Order 16, r. 11. Now, I apprehend that even if the purpose, the sole and only purpose of a proposed defendant intervener is to counterclaim, nevertheless in the circumstances of a particular case counterclaims “may enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter” and this may render the presence of the proposed defendant intervener necessary before the court for that to be done. It seems therefore that the argument relating to the counterclaim is by no means straight-forward and decisive and that it cannot be decided in isolation without considering the language of Order 16, r. 11 and the nature of the counterclaim having regard to the pleadings. In my view therefore the relevant consideration is not that the intervener is setting up a counterclaim. It is: “Is he within the rule?”
Counsel for the respondent made two further submissions, the first submission suggested that on the authority of Moser v. Marsden [1891-1894] All E.R. Rep. 458, C.A. a party ought not to be joined merely because he has a commercial interest in the litigation. I must confess that I have strained hard without appreciating the relevance of this submission. I do not see in the facts of this case any question of commercial interest involved and counsel did not indicate any: I think the submission is irrelevant. I shall later on in this judgment, discuss the views of Lindley L.J. in Moser v. Marsden (supra) and advert to his interpretation of the scope of Order 16, r. 11.
Another submission of counsel for the respondent is that joinder is only permitted in those classes of cases which are set down in the notes to Order 16, r. 1 of the English Rules (see the Annual Practice 1962, pp. 324-325). These classes in the White Book are:
“(A) In a representative action where the intervener is one of a class whom plaintiff claims to represent.” Buckley J. in McCheane v. Gyles (No. 2) [1902] 1 Ch. 911 at p. 912 adverted to this type of action.
“(B) Where the proprietary rights of the intervener are directly affected by the proceedings . . .” Vavasseur v. Krupp (1878) 9 Ch.D. 351, C.A.; Samuel v. Samuel (1879) 12 Ch.D. 152; Appollinaris Co. v. Wilson (1886) 31 Ch.D. 632, C.A.; Debenture Corporation v. Murrieta (1892) 8 T.L.R. 496; Watson v. Cave (No. 1) (1881) 17 Ch.D. 19, C.A. and Montgomery v. Foy, Morgan & Co. [1895] 2 Q.B. 321, C.A. exemplify this class which is the most common.
“(C) In actions claiming specific performance of contracts where third persons have an interest in the question of the manner in which the contract should be performed.”
See Dix v. Great Western Railway Co. (1886) 55 L.J.Ch. 797.
The submission of counsel for the respondent is that the present case does not fall within any of the above classes of cases and therefore
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for this reason there is no jurisdiction to order joinder. It seems to me that after the admirable judgment of Devlin J. (as he then was) in Amon v. Raphael Tuck & Sons Ltd. [1956] 1 All E. R. 273, this submission cannot be contained. It is noteworthy that Devlin J. based the exercise of the jurisdiction to order joinder upon a wide principle indeed. In fact substantially the same submission which counsel has thought fit to urge upon me based on the three classes in the White Book was pressed not without some force on Devlin J. and he disposed of it in a manner which I wish respectfully to adopt. He said at p. 290 (the emphasis is mine):
“The final submission of counsel for the plaintiff is more far-reaching than the others. He submits that the action and the intervener’s claim are concerned with rights in contract and not rights of property, and, therefore, the case does not come within the term ‘proprietary rights’ as set out in the note in the Annual Practice, 1955, at p. 233. I am not, of course, required to construe that phrase as if it were contained in a statute. If I were I should see no reason why rights under a contract should not be called proprietary rights just as much as rights to physical property. The phrase, however, is not used definitively. The three categories formulated in the note are not exhaustive. Indeed, I do not think that they should be treated as having been formulated independently. There is one common principle running through them all, and, for my part, I should prefer to apply a test based on that principle rather than to inquire whether the case to be determined falls into one or other of the three classes. There is not, for example, any real distinction between the cases which related to specific performance and those which related to proprietary rights. As Wynn-Parry, J., said in Dolfus Mieg et Compagnie S.A. v. Bank of England [1950] 2 All E.R. at p. 611: ‘It seems to me that the true test lies not so much in an analysis of what are the constituents of the applicants’ rights, but rather in what would be the result on the subject-matter of the action if those rights could be established.’ I respectfully agree with that. I think that the test is: ‘May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights?’ ”
In my opinion the classes of cases itemized in the White Book, and in this I am in entire agreement with Devlin J. (as he then was) are only instances and illustrative of cases in which joinder will as a matter of discretion be allowed. The White Book did not purport to close or exhaust the categories and this is evident from the manner in which the proposition regarding the three classes of cases was prefaced at p. 324 of the White Book (emphasis mine). “Generally speaking, intervention can only be insisted upon in three classes of case namely . . .”
I have now substantially disposed of the more difficult arguments of counsel for the respondent and I chose to so deal with these arguments first, because they were the only ones that were pressed on me with great force and at great length, and in my view because they were of dubious
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validity, I thought by so dealing quickly with them I might in the process be able to retain their initial force and impression and so be better able to appreciate and answer them.
I now turn to the arguments of counsel for the applicants. I have already referred to his submissions substantially set down in paragraphs (5) and (6) of the affidavit supporting the application.
The first argument is that the Popular Merchants Co., Ltd., the company sought to be joined are the parties directly affected by the action and so joinder should be permitted in the interests of justice to avoid multiplicity of actions. Lord Esher M. R. in Montgomery v. Foy, Morgan & Co., (supra) at p. 324 did advert to this question of avoiding multiplicity of suits when considering joinder under Order 16, r. 11. He said (the emphasis is mine):
“I can find no case which decides that we cannot construe the rule as enabling the Court under such circumstances to effectuate what was one of the great objects of the Judicature Acts, namely, that, where there is one subject-matter out of which several disputes arise, all parties may be brought before the Court, and all those disputes may be determined at the same time without the delay and expense of several actions and trials.”
In Bentley Motors (1931) Ltd. v. Lagonda Ltd. (supra) at p. 213 Evershed J. (as he then was) expressed a similar opinion. Of Order 16, r. 11 he said:
“[I]f the rule is inapplicable to such cases, the party sought to be joined must proceed by separate action to enforce his claim, and in that separate action obtain, pending its determination, a suspension of the original action. In my judgment one of the main objects of the rule is to render unnecessary such multiplicity of proceedings.”
And in Coleman v. Shang [1959] G.L.R. 390 at p. 398, C.A. van Lare J.A. delivering the judgment of the court (van Lare as Ag.C.J., Granville Sharp J.A. and Ollennu J.) in the preparation of which all the panel members participated, also considered obiter the purpose of Order 16, r. 11. In respect of multiplicity of suits, he said: “The purpose of Order 16, r. 11 is to secure the determination of all disputes relating to the same subject-matter without delay, and without expenses of separate actions.”
I think this dictum of van Lare acting Ag.C.J. is definitely too wide as appears from the view of Devlin J. in Amon v. Raphael Tuck & Sons (supra).
Devlin J. (as the then was) in Amon v. Raphael Tuck & Sons (supra) after examining and discussing in a most exhaustive and able manner most of the relevant authorities on Order 16, r. 11 came to a conclusion and expressed an opinion on this matter of multiplicity of actions. I respectfully agree with his conclusion and wish to adopt his opinion. He said at p. 285:
“I do not, with deference to those who have thought otherwise, agree that the main object of the rule is to prevent multiplicity of actions,
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though it may incidentally have that effect. The court has other ways of doing that which are amply sufficient for the purpose — by ordering consolidation, or the bringing of actions on together, or third-party proceedings, and so on. The primary object of the rule I believe to be replace the plea in abatement. The object of that plea was to ‘abate’ an action in which all the proper parties were not before the court. The rule is more flexible than the plea, but its object is fundamentally the same. It is not to marry a future action to an existing one, but to ensure that all the necessary parties to the existing one using ‘necessary’ in the broad sense of being necessary to effectual and complete adjudication in the existing action) are before the court. It does incidentally keep down Multiplicity of actions, because, if the necessary parties cannot get before the court in an existing action, they will naturally try to do so in another action, but that appears to me to be a desirable consequence of the rule rather than its main objective.”
Multiplicity apart, implicit in the argument of counsel for the applicant contained in the said paragraph (5) of the affidavit (supra) are two propositions the first is that the intervener company “are the parties directly affected by this action,” and for that reason joinder should be permitted. The second proposition is that the jurisdiction to order joinder is based on a duty to do justice. I propose to deal first with this second proposition. There is always a real danger when vague ideas of justice undefined by statute or case law are propounded and brandished like a cure-all magic wand — without appreciating the actual position, namely, that the true legal notions of justice are circumscribed by the demands of the law and that in this court we administer justice according to three and only three yardsticks: statute, case law or our well defined practice. Of course Dr. Ekow Daniels counsel for the applicants although he may not have realised it is in very good and respectable company when he submits that joinder under Order 16, r. 11 should be based on what to the court should seem just. In Ohene v. Principal Secretary, Ministry of Finance [1971] 1 G.L.R. 102, Hayfron-Benjamin J. shared his views in a dictum which in my respectful opinion, if I may say so, was not necessary for the decision. It condensed unduly the jurisdiction spelled out in Order 16, r. 11. He said at p. 104 that, “under Order 16, r. 11… this court has the power either upon or without the application of either party to substitute a party as plaintiff or defendant on such terms as may seem just.”
I am afraid the power is much more elaborate than that; it is not just any party, it must be in respect of parties “who ought to have been joined or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the cause or matter.”
With regard to the first proposition, namely, that the company should be joined because they are “directly affected,” I do not with respect to counsel for the applicants think that the rule is so wide that any party who can say that he is directly affected ought to be joined. In what respect is
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he affected and what is the nature of his interest are questions inextricably wound up with whether the party should be joined or not. Indeed this would seem to be the same argument advanced on behalf of the intervener in the case of Moser v. Marsden [1892] 1 Ch. 487 at p. 488, C.A. This is the same case reported without the arguments in [1891-1894] All E.R. Rep. 458, C.A. and which was cited to me by counsel for the respondent. In that case the plaintiff the registered owner of a patent in a machine sued the defendant for an alleged infringement of his patent. The defendant had purchased the machine from one Mortforts who manufactured it in Prussia under a patent which he had obtained in that country. Mortforts applied to be joined as a defendant on two grounds: first, that a judgment in the suit would injure him and second that the defendant would not efficiently contest the action. Lindley L.J. at pp. 490-491 answered the first ground which is in effect the same ground as is urged by counsel for the applicant here. He said (the emphasis is mine):
“The counsel for the applicant grounded his argument on the allegation that Mortforts’ interest would be affected by the decision in this action. It is true that his interest may be affected commercially by a judgment against the Defendant, but can it be said that it would be legally affected? Can we stretch the rule so far as to say that whenever a person would be incidentally affected by a judgment he may be added as a defendant? No case has been cited that goes so far as that: Vavasseur v. Krupp (9 Ch.D. 351), and Apollinaris Company v. Wilson (31 Ch.D. 632), are the nearest to the present case. But in both those cases the proceedings affected the property of persons not before the Court. I can understand the application of the rule where the property of a third party is affected. He may well say, ‘I am not to be deprived of my property in my absence.’ But this case does not come up to that. In my opinion . . . The case does not come under the rule at all; it is not a question of discretion, but of jurisdiction.”
Lindley L.J. apparently contemptuously ignored the second ground. Perhaps he thought it was not worth ink and paper; Kay L.J. however disposed of that ground summarily and peremptorily. He said at pp. 491-492: “Mortforts says that the defendant will not contest the case properly, and will not conduct the defence so energetically as he would. But we cannot help that.” Now I have deliberately set down in some detail the relevant portions of the pleadings. One thing that is clear and emerges from a consideration of the application with which I am now dealing is that neither in the pleadings nor in the affidavit in support of the application is the nature of the interest of the company disclosed which makes them “directly affected by this action.” The only reason I can gather from the affidavit apart from the intention to counterclaim, why the first defendant wants the joinder is that he is, if the plaintiff is right in his claim, a joint tortfeasor with the company and because the company is in law vicariously responsible for torts which he as its agent commits in the course of his employment joinder should be ordered. This appears from paragraph (4) of the affidavit as follows:
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“That even though I wrote these letters in my capacity as managing-director of Popular Merchants Co., Ltd., and of Timber and Transport Co., Ltd., the plaintiff sued me and the Timber & Transport Co., Ltd. only, leaving out the Popular Merchants Co., Ltd. who are a necessary party to this action.”
This raises questions of far-reaching consequences. There does not seem to be many cases in the books in which a defendant tortfeasor jointly and severally liable with another as is apparently the case here has applied to have that other tortfeasor made a co-defendant in the action. At least I have not succeeded in finding any. This is understandable. On p. 112 of Clerk & Lindsell on Torts (13th ed.) it is stated that, “it is not necessary that all joint tortfeasors be sued in the same action,” and in a footnote to this text in the English Rules of the Supreme Court, 1967, Order 15, r. 4 (3) is cited for the proposition that, “The defendant cannot compel the plaintiff to join other persons liable with him but must, if necessary apply to join such persons as third parties under R.S.C. order 16.” There was no decided authority cited to support it perhaps because none “existed. Now, Order 15, r. 4 (3) of the English Rules in the White Book, 1967, is as follows:
“(3) Where relief is claimed in an action against a defendant who is jointly liable with some other person and also severally liable, that other person need not be made a defendant to the action; but where persons are jointly, but not severally, liable under a contract and relief is claimed against some but not all of those persons in an action in respect of that contract, the Court may, on the application of any defendant to the action, by order stay proceedings in the action until the other persons so liable are added as defendants.”
A note to this rule at p. 154 of the said 1967 White Book, entitled “Joinder of joint defendant” states that although this provision is new it codified the law and practice relating to joinder of parties jointly liable. The note then states further (the emphasis is mine):
“Where the liability of two or more persons is several as well as joint, the plaintiff may choose which of them to sue, and he need not join in the action the other persons also liable; and in such case, the defendant cannot compel the plaintiff to join the other persons liable with him. He must, if necessary, apply to join such persons as third parties …
On the other hand, where the liability of two or more persons is joint only, and is not several also, the plaintiff should join all the persons so liable as defendants in the one action, and if he does not do so, and sues only one of several persons jointly liable, such defendant may apply for an order to stay the proceedings unless and until the other persons jointly liable with him are added as co-defendants in the action.”
Once again no decided authority was cited in support possibly because none existed. [p.263] of [1971] 2 GLR 242
Obviously the joinder contemplated here having regard to the suggested third party procedure must be in respect of cases where the defendant tortfeasor is entitled to contribution or indemnity. In this case before me is the defendant entitled to contribution or indemnity? Is the liability of the company and the defendant assuming there is liability, joint and several or only joint or only several? It seems to me that since the first defendant admits writing the letters the subject-matter of this libel suit he is primarily liable assuming there is libel and the liability of the company must needs be vicarious.
In Salmond on Torts (14th ed.), at pp. 684-685 this principle is stated:
“It seems clear on principle, also, that in all cases of vicarious liability the person held vicariously liable for the tort of another must have a right of indemnity as against that other. Thus a master who has paid for the negligence of his servant can doubtless sue that servant for indemnity.”
This principle first enunciated in a slightly different form by Sir John Salmond has been quoted and approved in substance in Jones v. Manchester Corporation [1952] 2 Q.B. 852 at p. 856, C.A.; Semtex Ltd. v. Gladstone [1954] 1 W.L.R. 945 at p. 948 and Romford Ice and Cold Storage Co. v. Lister [1956] 2 Q.B. 180, C.A. and indeed it would seem to be the foundation of the decision of the House of Lords in Lister v. Romford Ice & Cold Storage Co., Ltd. [1957] A.C. 555, H.L. when the last case went on appeal to the House.
I have adverted to these authorities and principles to show that even if the interveners are necessary parties in the sense that they may be ‘vicariously liable, the respondent is not on that account obliged to sue them and that on the authorities as they are and on principle the applicants are not entitled to compel the respondent to sue the company. Even if this view is wrong, there is the undoubted position that throughout its history it has been consistently held by the judges that Order 16, r. 11 so far as its terms are concerned gives a discretion. As A. L. Smith L.J. succinctly put it in Wilson, Sons & Co. v. Balcarres Brook Steamship Co. Ltd. [1893] 1 Q.B. 422 at p. 430, C.A. that, “by Order XVI., r. 11, jurisdiction is given to order all necessary parties to be joined. By that rule a discretion is given.”
How can that discretion be exercised to bring in “necessary parties?” In the first place it seems to me that the phrase “necessary parties” must not be considered in isolation. And this brings me into grips at once with the second ground on which the applicants want joinder. Indeed paragraph (4) of the affidavit (supra) necessarily merges in paragraph (6) (supra) and raises the only question with which the exercise of discretion is concerned, namely, whether or not the company, the proposed interveners, ought to be joined because their presence before the court is necessary in order to enable the court to effectually and completely adjudicate and settle all the questions involved in the action.
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Now if the matter were really one of discretionary jurisdiction, and I have indicated that it is, and if I were to rest my decision on the exercise of this discretion, then I cannot see how necessary it is to join a party against whom the respondent does not wish to proceed and from whom the applicants can obtain neither contribution nor indemnity nor indeed any advantage: a party who from the line of authorities which ended up with the Lister v. Romford Ice & Cold Storage Co., case (supra), is not entitled in fact and in law to claim indemnity from the defendant. What purpose will the joinder serve?
Is it a proper exercise of discretion to bring in a company alleged vicariously liable in a case like the present in which the respondent in his reply has alleged that the applicants published the defamatory matter with malice towards him? Surely in exercising a discretion in the circumstance to bring in the company I must not lose sight of the doubts which Thesiger J. cast on the joint tortfeasor status of a company like Popular Merchants Co., Ltd., in these proceedings. In Gardiner v. Moore [1969] 1 Q.B. 55 at p. 91 Thesiger J. expressed some qualms which I respectfully share. He said:
“I query whether, since Egger v. Chemlsford ([1965] 1 Q.B. 248) was decided, and must be assumed to have made the law clear, it is possible to hold that a defendant C is a joint tortfeasor with defendants A and B unless it is proved, in a case where that is necessary to constitute a tort, that all three had, at the time of the common act, a common state of mind such as malice.”
I think in considering this matter I ought to adopt the approach of Wynn-Parry J. in the Atid case already discussed. At p. 337 Wynn-Parry J. opined broadly in commencing his judgment: “I approach this matter bearing in mind that the general rule is that a plaintiff who conceives that he has a cause of action against a defendant is entitled to pursue his remedy against that defendant alone, and he cannot be compelled to proceed against other persons who he has no desire to sue. But the court is given a discretion by Order 16, r. 11 — and it is entirely a discretionary jurisdiction — in certain circumstances to compel the plaintiff to join other parties as defendants as a condition of allowing him to proceed with his action.”
I apprehend strong reasons must be advanced for departing from the general rule under the guise of exercising discretion. None has been advanced by the applicants. But the reason why this application ought to be dismissed rests on another ground as well. Is the presence of the company before the court necessary for the reasons prescribed in Order 16, r. 11? Lindley L.J. in Moser v. Marsden [1892] 1 Ch.
487 at p. 490, C.A. provided a test for measuring the limits of the application of the rule that: “In order to properly understand the rule we must look at the whole of it. It begins by saying, ‘No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of parties’ — that is the key
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to the whole section: if the Court cannot decide the question without the presence of other parties, the cause is not to be defeated, but the parties are to be added so as to put the proper parties before the Court.”
Applying this to the present case. The state of the pleadings shows that this is a pure and simple case of libel. Can it be said that this court cannot decide whether or not the applicants libelled the respondent without the presence of the company. I cannot for myself see any conceivable reason in the circumstance of this case why a decision as to whether the applicants did indeed libel the respondent can possibly involve the company. It seems that to intervene the company must satisfy the Lindley test propounded above. Clearly the company cannot satisfy the test and for this reason joinder must be refused. There is an alternative test, a practical one propounded with consummate skill and commendable perspicacity and after a most exhaustive and industrious examination of many relevant authorities by Devlin J. (as he then was) in Amon v. Raphael Tuck & Sons Ltd. (supra) at p. 290. I have already adverted to it in this judgment. Devlin J. (as he then was) formulated it thus: “I think that the test is: ‘May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights?”
The test is not exhaustive nor is it of universal application. Indeed after laying down this test Devlin J. immediately set out and endeavoured to show that although it is of general application nevertheless it is not without exceptions. As formulated however it is sufficient for the purpose of this judgment. I think the Devlin test is not also satisfied in this case.
If I may with diffidence propound my own test I will relate the exercise to the terms of Order 16, r. 11 and ask whether the presence of the Popular Merchant Co., Ltd. is necessary to enable the court effectually and completely to adjudicate upon and settle all questions involved in the action. I do not see the question involved in the suit which concerns the intervener and which ought to be adjudicated upon or settled and so my test which is not unlike the Lindley test is also not satisfied here.
This case which I am dealing with now is for all practical purposes and on the point of procedure involved on all fours with the case of Apenteng v. Bank of West Africa [1961] G.L.R. 81. I did not just merely mechanically apply that case because in the first place it is a decision of a court of co-ordinate jurisdiction although coming as it does from Ollennu J. (as he then was) it deserves the greatest respect. Secondly, despite the fact that counsel for the applicant in the case was Victor Owusu, it is not clear from the report whether the case was argued as vigorously as this case was, and thirdly, the judgment, although it is I think right and applied what in my view are the true principles of joinder, is so short that the principles were obviously not canvassed with any depth. The facts of that case are that the plaintiffs claimed N¢294,000 general and special damages against three defendants jointly and severally for negligence and for breach of trust. The second defendant applied to the court under
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Order, 16, r. 11 for an Order to join one John Haymes as fourth defendant. The ground for the application argued by Victor Owusu for the defendant was that the said John Haymes was at all times material to the suit the manager of the bank of the first defendant and that his presence was necessary to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the case. Ollennu J. (as he then was) refused the application and gave in my view good and valid reasons why the application should be dismissed. He said at p. 82:
“In an application for joinder, the most important question which the court has to answer is: would the joinder of the party enable the court effectually and completely to adjudicate upon and settle all questions involved in the cause? If it would, the application should be granted, if it would not, the application should be refused.
To arrive at the correct answer in a case like this where the application is by the defendant and not by a plaintiff, the court must be guided by certain considerations and principles. The court must first of all, look at the plaintiff’s writ of summons, his pleadings and the reliefs he seeks; if the plaintiff makes no claim either directly or inferentially against the party sought to be joined, or if the claim could succeed without the party sought to be joined being made a party, the application must be refused. In other words, would an order for which the plaintiff is asking in the action directly affect the party sought to be joined, not in his commercial interest, but in enjoyment of his legal right? See Amon v. Raphael Tuck & Sons ([1956] 1 Q.B. 357). If an order in favour of the plaintiff on his claims will not directly affect the party whom a defendant seeks to have joined, the application will be refused. In such a case if a defendant requires indemnity against another party, his proper procedure is to have a third party notice served.
The plaintiffs’ claim in the present suit makes no claim against the party sought to be joined and the claim is such that if proved, an order which may be made on it in favour of the plaintiffs cannot by any stretch of the imagination affect the party sought to be joined in the enjoyment of his legal right. It is immaterial whether or not the party sought to be joined could, as a servant, be jointly liable with his employers, as was the case in Woods v. Martins Bank Limited ([1959] 1 Q.B. 55). As the writ of summons and the pleadings filed stand so far, an order in favour of the plaintiffs will not in any way affect his legal rights. Therefore the person sought to be joined does not fall within the category of persons ‘whose presence may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the cause or matter’, (Order 16, r. 11) now before the court; he cannot therefore be properly joined as a defendant upon the application of a defendant.”
This reasoning of Ollennu J. (as he then was) would accord fully with the reasons canvassed in this judgment and apply mutatis mutandis and be an answer to the grounds of the present application.
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In the result it is my view that this case involves the application of two parallel but related principles. The first is that the court has jurisdiction only to grant joinder to achieve the purpose specified in Order 16, r. 11. This is the principle so fully stated by Ollennu J. and already referred to and which Devlin J. (as he then was) put in succinct language at p. 279 in Amon v. Raphael Tuck & Sons (supra).
“The beginning and end of the matter is that the court has jurisdiction to join a person whose presence is necessary for the prescribed purpose and has no jurisdiction under the rule to join a person whose presence is not necessary for that purpose.”
Clearly the presence of the Popular Merchant Co., Ltd. is not necessary to effectuate the purpose prescribed in the rule. So there would seem to be no jurisdiction.
The second principle is that the jurisdiction in any case in which it exists is discretionary but having regard to the considerations I have been at pains to canvass in this ruling, it seems to me that in this case the discretion ought not to be exercised to order joinder assuming there is jurisdiction.
It is for these reasons that on 9 July 1971 I dismissed the application of the defendants and refused the joinder of the Popular Merchants Co., Ltd. The respondent is to have his costs against the applicants assessed at N¢30.00.
DECISION
Application for joinder
refused. K.T.
