SAM vs. ATTORNEY-GENERAL [1999-2000] 2 GLR 327

CASES REFERRED TO

(1) Bonsu v Bonsu [1971] 2 GLR 242.

(2) Amon v Raphael Tuck & Sons Ltd [1956] 1 QB 357; [1956] 1 All ER 273; 100 Sol Jo 91. (3) Vendervell Trustees Ltd v White [1971] AC 912; [1970] 3 WLR 452; [1970] 3 All E R 16, HL. (4) Ohene v Principal Secretary, Ministry of Finance [1971] 1 GLR 102.

(5) Gurtner v Circuit [1968] 2 QB 587; [1968] 2 WLR 668; [1968] 1 A11ER 328, CA. (6) Dzaba III v Tumfour [1978] GLR 18, CA.

(7) Boateng v Dwinfour [1979] GLR 360, CA.

[p.328] of [1999-2000] 2 GLR 327

(8) Ekwam v Pianim (No 1) [1996-97] SC GLR 117.

(9) Agyei v Apraku [1977] 2 GLR 10.

(10) Ussher v Darko [1977] 1 GLR 476, CA.

(11) Ekwam v Pianim (No. 2) [1996-97] SC GLR 120.

(12) Ageis Shipping Co Ltd v Volta Lines Ltd [1973] 1 GLR, 438.

APPLICATION for joinder as co-defendants in a case in which plaintiff had invoked the original jurisdiction of the Supreme Court for a declaration that section 15 of the Divestiture of State Interests (Implementation) Law, 1993 (PNDCL 326) was inconsistent with or in contravention of the provisions of article 140(1) and 293(2) and (3) of the Constitution, 1992 and was to that extent void. The facts are sufficiently stated in the ruling of the majority of the court delivered by Ampiah JSC.

Stanley Amarteifio for the applicant.

Ntrakwa (with him Miss Irene Danquah) for the respondent.

E A Addo, Solicitor-General (with him S Y Anim, Chief State Attorney) for the Attorney-General.

Ampiah JSC. Delivered the ruling of the majority of the court. This is an application by the applicants herein, the Divestiture Implementation Committee (DIC) and Mr Emmanuel Amuzu Agbodo, for an order joining them as co-defendants in the case of Joseph Sam v The Attorney-General suit No 5/98 now pending before the court. The first applicant, the Divestiture Implementation Committee, is “the agency of the government for the implementation of all government policies in respect of divestiture programmes,” and the second applicant is a member and an officer of the first applicant committee.

On or about 8 September 1998, the plaintiff in the above-named suit, ie suit No 5/98, invoked the original jurisdiction of this court by issuing a writ for:

“A declaration that section 15 of a Divestiture of State Interests (Implementation) Law 1993 (PNDCL 326) is inconsistent with or in contravention of the provisions of articles 140(1) and 293(2) and (3) of the Constitution, 1992 of the Republic of Ghana and to that extent it is null and void.”

[p.329] of [1999-2000] 2 GLR 327

This action is against the Attorney-General as the chief legal adviser to the Government of Ghana and who by law is to be sued for all defaults of government, its agencies or servants.

The applicants contended that since section 15 of the Divestiture of State Interests (Implementation) Law, 1993 (PNDCL 326) charges them with the responsibility of implementing the government’s policies in respect of its divestiture programmes and creates an indemnity for them in the discharge of their functions against court proceedings, they are necessary parties to any action before the court which touches on the programme and must therefore be joined. Consequently, they ask that they be joined in this action. Section 15 of PNDCL 326 provides:

“15. No action shall be brought and no Court shall entertain any proceedings against the State, the Committee or any member or officer of the Committee in respect of any act or omission arising out of a disposal of any interest made or under consideration under this Law.”

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. 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. The purpose of the joinder therefore is to enable all matters in controversy to be completely and effectually determined once and for all. But this would depend upon the issue before the court, ie the nature of the claim.

The issue now before the court in the instant case is the determination of whether or not section 15 of PNDCL 326 is inconsistent with or in contravention of the provisions of articles 140(1) and 293(2) and (3) of the Constitution, 1992 and if so to what extent it should be declared null and void. No specific allegation is being made against any of the applicants for any part played in the implementation of the divestiture programme for which an indemnity may be sought. The situation may have been different if a claim had been made against the government in respect of the implementation of its divestiture programmes; that would have called for a different consideration. Significantly, for purposes of the instant writ, the plaintiff did not find it necessary to join the

[p.330] of [1999-2000] 2 GLR 327 applicants: It is they themselves who, despite their claim to indemnity, are asking to be joined.

It is my considered opinion that it is not necessary at present to have the applicants before the court for the determination of the matter now before it. I would dismiss the application.

Bamford-Addo JSC. I agree.

Acquah JSC. I agree.

Atuguba JSC. The facts of this application have been set out in the ruling that has preceded mine. The applicants herein apply under rule 45(4) of the Supreme Court Rules, 1996 (CI 16) for joinder as defendants. Rule 45(4) of CI 16 provides:

“(4) The Court may, at any time on its own motion or on the application of a party, order that any other person shall be made a party to the action in addition, to or in substitution for any other party.”

(The emphasis is mine.) The application is grounded on a common contention by the applicants, as revealed by their affidavits in support of their application, that: (a) Section 15 of the Divestiture of State Interests (Implementation) Law, 1993 (PNDCL 326), the validity of which the plaintiff challenges in this case, creates an indemnity for the applicants in the discharge of their functions against court proceedings; and (b) that they are therefore directly affected by the action.

The plaintiff, the respondent in their application, resists the application on the ground that: “the interest of the applicant is not and cannot be different from the interest of the State or government which is being defended by the Attorney-General; that their joinder may unduly delay the trial, create substantial danger of confusing the issues and or otherwise be inconvenient; and lastly that the “the Divestiture Implementation Committee (DIC) has no legal capacity to bring this application.”

What is the test for joinder of parties to an action in this court? I must point out that the wording of rule 45(4) of CI 16 is wider than its counterpart in the High Court of this country which is substantially the same as its English counterpart, and which has received extensive judicial consideration here and in England. The [p.331] of [1999-2000] 2 GLR 327

English counterpart of the rule is RSC order 15, r 6 of which the relevant provisions are:

“(2) At any stage of the proceedings in any cause or matter the court may on such terms as it thinks just and either of its own motion or on application . . . (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 cause or matter may be effectually and completely determined and adjudicated upon be added as a party …”

There has been much judicial wrestling here and in England over whether his rule should be given a narrow or wide construction. The encyclopaedic judgment of Taylor J (as he then was) in Bonsu v Bonsu [1971] 2 GLR 242 has treated that rule fully. Taylor J in that case held at 258 that the narrow construction put on it by Devlin J (as he then was) in Amon v Raphael Tuck & Sons Ltd [1956] 1 All E R 273 was the correct one. Devlin J (as he then was) had said at 290: “. . . 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 emphasis is mine.) This narrow construction received the blessing of Viscount Dilhorne in Vandervell Trustees Ltd v White [1971] AC 912 at 936, HL when disagreeing with Lord Denning MR’s wide construction of the rule at the Court of Appeal from which the appeal came to the House of Lords. He said: “The rule does not give power to add a party whenever it is just or convenient to do so. It gives power to do so only if he ought to have been joined as a party or if his presence is necessary for the effectual and complete determination and adjudication upon all matters in dispute in the cause or matter.”

(The emphasis is mine.) This is much to the same effect as the criticism of Taylor J (as he was) of a similar wide construction of the rule by Hayfron-Benjamin J (as he then was) in Ohene v Principal Secretary, Ministry of Finance [1971] 1 GLR 102.

It will, however, be noticed that unlike the rule for joinder at the High Court, rule 45(4) of CI 16 aforesaid is not, on its face, circumscribed by any limitations. In my view, the legislature which is deemed to know to the law intended in rule 45(4) of CI 16 to free this court from any preordained circumscriptions which

[p.332] of [1999-2000] 2 GLR 327 bedevilled the application of the rule for joinder as it pertains to the High Court. That being so, the wider test applied by Lord Denning MR at the Court of Appeal in Vandervell Trustees Ltd v White (supra) is rather germane to the construction of rule 45(4) of CI 16. Lord Denning MR had said in that case reported as White v Vandervell Trusts Ltd [1969] 3 All ER 496 at 499, that:

“We will in this court give the rule a wide interpretation so as to enable any party to be joined whenever it is just and convenient to do so. It would be a disgrace to the law that there should be two parallel proceedings in which the selfsame issue was raised, leading to different and inconsistent results. It would be a disgrace in this very case if the Special Commissioners should come to one result and a judge in the Chancery Division should come to another result as to who is entitled to these dividends.”

(The emphasis is mine.) Again Lord Denning MR in Gurtner v Circuit [1968] 1 All ER 328 at 332, CA said:

“It seems to me that, when two parties are in dispute in an action at law and the determination of that dispute will directly affect a third person in his legal rights or in his pocket, in that he will be bound to foot the bill, then the court in its discretion may allow him to be added as a party on such terms as it thinks fit. By so doing, the court achieves the object of the rule. It enables all matters in “dispute to be effectually and completely determined and adjudicated” between all those directly concerned in the outcome.”

(The emphasis is mine.) Supporting this view, Lord Diplock said at 336:

“Clearly the rules of natural justice require that a person who is to be bound by a judgment in an action brought against another party and directly liable to the plaintiff on the judgment should be entitled to be heard in the proceedings in which the judgment is sought to be obtained. A matter in dispute is not, in my view, effectually and completely ‘adjudicated upon’ unless the rules of natural justice are observed, and all those who will be liable to satisfy the judgment are given an opportunity to be heard.”

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(The emphasis is mine.) These sentiments are similar to those echoed in Dzaba III v Tumfour [1978] GLR 18, CA and repeated in Boateng v Dwinfour [1979] GLR 360 at 369, CA where Anin JA (as he then was), (Apaloo CJ and Francois JA (as he then was) concurring) said:

“. . . the general rule is that the grant of a declaratory relief is discretionary and ought to be exercised with care and caution and judicially, with regard to all the circumstances of the case and except in special circumstances it should not be exercised unless all interested parties are present.”

This obviously means that all interested parties ought, except in special circumstances, to be joined as parties to a declaratory action such as the sort in this case. Similarly, as this court constituted solely by Kpegah JSC said in Ekwam v Pianim (No 1) [1996-97] SC GLR 117 at 118:

“The application was initially brought ex parte but following representations made on behalf of the NPP to be heard on the matter, I ordered it served as an interested party since it will undoubtedly be affected by the orders of this court. For it is the duty of this court to keep the door to the shrine of justice wide open rather than to close it.”

(The emphasis is mine).

Applying these principles, the contention of the plaintiff that the interest of the applicants and the State is the same is unacceptable. The question, on the authorities cited supra, is whether the applicants will be affected in the enjoyment of their right by the result of this case and whether therefore the ends of natural justice require that they, as interveners in this action, should be heard. In Agyei v Apraku [1977] 2 GLR 10 Roger Korsah J held that in a representative action, a member of the class represented by the plaintiff can nonetheless apply in his individual capacity for joinder to the action.

Nor can I accept the plaintiffs contention that the joinder of the applicants, “may unduly delay the trial, create substantial danger of confusing the issues and/or otherwise be inconvenient.” (The emphasis is mine). This grievance is speculative and cannot be accepted. As Taylor J said in Bonsu v Bonsu (supra) at 253, unspecified embarrassment is not a ground for refusing joinder. Nor, as he said, is inconvenience per se a ground for refusing

[p.334] of [1999-2000] 2 GLR 327 joinder where valid grounds are shown for it. Similarly, in Ussher v Darko [1977] 1 GLR 476 at 485, CA, Apaloo CJ (Lassey and Kingsley-Nyinah JJA concurring) said:

“To shut him out in a suit in which, (as the judge must have known) his interest was vitally affected on the unproven ground of dilatoriness was wrong. As to the judge’s reason that his joinder would unduly prolong the trial, I cannot see it. This was not by any means a long or complicated trial. . . There is no special reason why this suit should be disposed of precipitately. The property is dispute was not a perishable asset.”

(The emphasis is mine.) Continuing at pages 485 and 486, Apaloo CJ explained:

“. . . the object which the rules as to joinder were designed to achieve, namely the avoidance of multiplicity of actions on the same subject matter. In Montgomery v Foy, Morgan & Co [1895] 2 QB 321, CA Lord Esher MR, delivering the leading judgment on Order 16, r 11 of the English Rules of the Supreme Court, said at p324:

‘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) v Lagonda, Ltd (1945) 14 LJ Ch 208, it was held that one of the main objects of Order 16, r 11 is to enable the court ‘effectually and completely to adjudicate upon and settle all questions involved’ so as to render unnecessary multiplicity of proceedings. Indeed the jurisdiction of the court to join a party under Order 16, r 11 may be exercised at any stage of proceedings, so long as anything remains to be done in the action: see Ives v Brown [1919] 2 Ch 314. It can be exercised even after an admission of liability by one of two possible defendants and even after judgment, though all that remains is the assessment of damages: see The Duke of Buccleuch (1892) P 201, CA. Our

[p.335] of [1999-2000] 2 GLR 327 rules as to joinder are no different in language or objective from the English rules.”

(The emphasis is mine.)

From all the above, it can be seen that some of the principles for joinder evolved out of the restrictive rule for joinder at the High Court are applicable to the construction of rule 45(4) of CI 16 and would justify the grant of the applicants prayer for joinder in this case. Indeed in Ekwam v Pianim (No 2) [1996-97] SC GLR 120, the plaintiff in an action in this court sought a declaration that the defendant was not qualified to contest the 1996 Presidential Elections under the Constitution, 1992. This court suo motu joined the New Patriotic Party and the Attorney-General as defendants to the suit. As stated by Edward Wiredu JSC at 126: “By an order of this court dated 5 March 1996, the Attorney-General and the New Patriotic Party (NPP) were made parties to the case and were ordered to be served with all relevant papers filed in the case.” It was the NPP which had vetted and cleared the defendant, Mr Pianim, as a person qualified to contest for election as the party’s presidential candidate for the national elections of 1996. It is quite clear that the interest of Pianim, the original defendant in the case, was the same as the NPP in that case; but the latter was nonetheless joined to the suit as a party likely to be affected by the decision in that case. At the stage of the joinder, all papers by the parties had been filed and judgment could have been given thereon. That joinder was made no doubt by virtue of rule 45(4) of the old rules of this court then contained in the Supreme Court Rules, 1970 (CI 13) which, identically with the present rule 45(4) of CI 16, provided as follows;

“(4) The Court may, at any time on its own motion or on the application of a party, order that any other person be made a party to the action in addition to or in substitution for any other party.”

(The emphasis is mine.)

In reaching this conclusion, I am not unmindful of the view of Abban J (as he then was) in Aegis Shipping Co Ltd v Volta Lines Ltd [1973] 1 GLR 438 at 443, that no matter whether a narrow or wide construction is given to the rule (at the High Court) for joinder, in the final analysis it is a matter of discretion for the court having regard to the circumstances of the particular case

[p.336] of [1999-2000] 2 GLR 327 whether to join a person to a cause or matter. This is true also of rule 45(4) of CI 16; but for the reasons I have given supra; I cannot agree that the joinder of the applicants to the action before this court is unnecessary. The whole issue before this court is the validity of PNDCL 326 which will vitally affect both the defendant (the State) and the applicants in the enjoyment of the immunities conferred on each of them respectively by that Law.

Of course in the case of the DIC, a further issue would have had to be cleared by it, namely whether it is a legal person that can be sued. I do not need to go into that matter since the majority decision to the effect that its joinder is unnecessary in this case renders that issue academic.

It is for all the reasons given supra, that I unhappily had to chart a solitary path of dissent.

Akuffo JSC. I also agree with the opinion of my brother Ampiah JSC that the application for joinder be dismissed.

Application dismissed.

SA