DIVISION: IN THE HIGH COURT, ACCRA
DATE: 31ST JANUARY, 1961
BEFORE: OLLENNU, J.
CASES REFERRED TO
(1) Woods v. Martins Bank Ltd. & Anor. [1959] 1 Q.B. 55; [1958] 3 All E.R. 166; [1958] 1 W.L.R. 1018
(2) Amon v. Raphael Tuck & Sons [1956] 1 Q.B. 357; [1956] 1 All E.R. 273; [1956] 2 W.L.R. 372
NATURE OF PROCEEDINGS
Application for joinder under Order 16, r.11.
COUNSEL
Nii Odoi Annan for the plaintiffs.
Victor Owusu for the defendants.
JUDGMENT OF OLLENNU, J.
[After stating the facts as above, his lordship continued:] Learned counsel for the applicant drew the court’s attention to the following words appearing in the said Order 16, r. 11 namely: “The Court or a Judge may, at any stage of the proceedings … order that… the names of any parties, whether plaintiffs or defendants, 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 the questions involved in the cause or matter, be added.”
Counsel also cited Woods v. Martins Bank, Ltd. & Anor.1(1), a case of a claim against a bank and the manager of the bank for damages for negligence, where it was held that the plaintiff was entitled to recover
[p.82] of [1961] GLR 81
against both the bank and the bank manager. Upon the said words of Order 16, r.11 and the case of Woods v. Martins Bank Ltd. & Anor.2(2) learned counsel for the applicant submitted that the person sought to be joined is a party whose presence before the court is necessary as a person who could be
liable jointly with the first defendant bank, his employers.
All that the case of Woods v. Martins Bank Ltd. & Anor.3(3) decided is that a bank manager who gives negligent advice to the bank’s customer, causing the customer to suffer damage, may be liable jointly with his employers in an action for damages for negligence. In my opinion that case is not a case of joinder and is no authority which can be of assistance to the court in a matter of this nature.
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.4(4) 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.5(5) 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”6(6) now before the court; he cannot therefore be properly joined as a defendant upon the application of a defendant.
The application for joinder is therefore dismissed with costs.
DECISION
Application dismissed
