Joinder of a Juristic Entity in an Article 64 Petition: A Slippery Slope in Civil Procedure Practice in Ghana
Introduction
It is fundamental in litigation that parties must commence action against relevant parties to the suit. A plaintiff who conceives that he has a cause of action against a defendant is entitled to pursue his remedy against that defendant and cannot be compelled to proceed against other persons whom he has no desire to pursue.[1]
It is provided in rule 45(4) of the Supreme Court Rules, 1996 (CI 16) as follows:
“45(4) The court may on its own motion or on the application by a party, order that any other person shall be made a party to the action in addition to or in substitution of any other party.”
The import of this provision is that in joinder applications any person whose presence before the court is necessary or to ensure that the dispute is effectively and completely determined and adjudicated upon should be added as a party.
The question here is what does a ‘person’ and a ‘party’ means within the meaning of the rules and article 64 of the Constitution 1992”
Black’s Law Dictionary[2], by Bryan Garner defines ‘person’ as a “natural person.”
According to the Black’s Law Dictionary supra a ‘party’ is defined as “a person who takes part in a legal transaction or proceeding is said to be a party.”
Rule 82 of CI 16 defines a ‘party’ as follows: “party” includes a party to an appeal or any other proceedings and counsel of that party.”
From these definitions it can be deduced that any person who has capacity to apply to be joined in a suit must be a natural person and not an artificial person. Therefore a ‘party’ must be a necessary party and a natural person within the definition of a person. I will fortify my argument by supporting my view with the dictum by Baffoe-Bonnie JSC in In re Presidential Election Petition, Akufo-Addo, Bawumia & Obetsebi-Lamptey (No.1) v Mahama & Electoral Commission (National Democratic Congress Applicant) (No.1)[3] as follows:
“These provisions, i.e. articles 64(1) of the 1992 Constitution and rule 68(1) and (3) (a) of CI 74 make it clear that a political party or an institution cannot challenge the declaration of results as a petitioner. A petitioner challenging the validity of presidential results can be filed only by a human person…..”
This view was confirmed by the majority opinion per Atuguba JSC in the Akufo Addo and Mahama case as follows: “…the applicant NDC, not being a citizen could not file a petition under article 64(1) of the constitution 1992.”
This Article is to inform readers that joinder of a juristic person is wrong in law and should not be countenanced. This article is in sync with the case of In re Presidential Election Petition, Akufo-Addo, Bawumia & Obetsebi-Lamptey (No.1) v Mahama & Electoral Commission (National Democratic Congress Applicant) (No.1) supra which will be discussed further in this article. The author believes that this aspect of the decision of the majority is a slippery slope and should be departed from.
Analysis
Principles for joinder as a party to an action
It was held by his Lordship Anin Yeboah JSC (as he then was) in the In re Presidential Election Petitioncase supra that:
“It is trite learning that joinder applications could be brought by either a party to the action or the court may on its own application order a joinder. We may also have a joinder application from a person who comes by way of intervener and not at the behest of either parties or the court on its own motion. That is joinder of intervener…”
His Lordship further held that, the test for joinder whether it is the narrow or wider construction appears to be different when it involves an intervener.
The principles covering joinder of parties have been laid down in several decided cases. Ollennu J (as he then was) in Apenteng v Bank of West Africa Ltd[4], said at page 82 of the report that:
“To arrive at the correct answer….., 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 action could succeed without the party sought to be joined made a party, the application must be refused.”
In Sam (No.1) v Attorney-General[5], Ampiah JSC, in delivering the ruling of the majority of the court said (as stated at page 104):
“Generally speaking, the court will make all such changes in respect of parties as may be necessary to enable 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 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.”
In Aegis Shipping Co. Ltd v Volta Lines[6], Abban J (as he then was) held (as per holding (2) of the headnote at page 439), that:
“…no matter the kind of construction which is put on Order 16, r 11, whether wider or narrower, the court had absolute discretion in any given case to determine whether having regard to the state of the pleadings and the issues raised, the intervener was a person who ought to have been joined or he was a person whose presence would enable the court, effectually and completely to decide the issues between the parties in the cause or matter. Even when it was shown that the intervener was a necessary party within the rule, the court could still refuse to join him if the action as then constituted could be well and properly contested by the parties.”
Also in Montero v Redco Ltd[7], the Court of Appeal (per Abban JA as he then was) said as stated at page 717):
“Order 16 r 11 gives the judge discretion in any given case to join any person whose presence before the court is necessary in order to enable the court to dispose of effectually and completely, all matters in controversy in the cause or matter…”
From these authorities the common thread that runs through all is as follows; that the nature of relief or claim as it affects the person sought to be joined; avoidance of multiplicity of suits; is the person sought to be joined, or seeking to join, a necessary party, ie one whose presence would lead to an effectual and complete adjudication of the matter in controversy before the court; or one whose exclusion would see aspects of the cause or matter unadjudicated upon.
Who is an intervener?
Reference has been made to cases where a person who is not a party to an action, on his own application, is joined as a co-defendant in it. Such a person becomes a party on his own intervention and is thus referred to as an intervener. Black’s Law Dictionary,[8] defines it “as one who voluntarily enters a pending lawsuit because of a personal stake in it.”
An intervener is sometimes used in reference to a statutory body seeking to be joined in an action in order to protect a public interest. Example may be an Attorney-General, who may intervene in a probate matter for reasons of public interest.[9]
The rules of court in the Ghanaian jurisprudence do not specifically provide for intervener. This is clear and one cannot import words to say that joinder under the rule could also be allowed by an intervener.
In the Nigerian case of Oyedeji Akanbi (Mogaji) and Another v Okunlola Isholsa Fabunmi and Another[10], the Supreme Court stated the conditions for granting a joinder of an intervener as:
(1) That the intervener ought to have been joined in the first instance as a party;
(2) The joinder of the intervener as a party is necessary to enable the court effectually and completely adjudicate upon and settle all questions involved in the cause or matter. Where all the facts necessary for the effectual and complete determination of the claim between the parties are before the court, non-joinder of the intervener will not affect the decision:
(3) An intervener must satisfy the court that his presence is necessary for the effectual adjudication of the matter;
(4) That the plaintiff must have a claim against him and desire to pursue it and that his interest must be identical with that of the existing defendants.
The test laid down in Amon v Raphael Turk and Sons Ltd[11], is instructive in this regard and is as follows: “would the order for which the plaintiff was asking in the action directly affect the intervener, not in his commercial interests, but in the enjoyment of his legal rights.”?
From these principles, it can be said that an intervener must demonstrate to the court that he is a necessary party and that excluding him from the matter will not help to effectually and completely dispose of the case and that the plaintiff’s reliefs directly affects him.
‘Necessary party’ is the legal requirement that an intervener has to establish before he can be joined to a suit. Under rule 45(4) of CI 16, a ‘necessary party’ is defined as a party who ought to have been or whose presence in the action of a party is necessary to ensure that all matters in controversy are effectively and completely adjudicated upon. Also in the Nigerian case of Ige v Forinde[12] ‘necessary party’ is defined as:
“A party to a suit whose presence is essential for the effectual and complete determination of the claim before the court. It is the party in the absence of whom the claim cannot be effectually and completely determined.”
For the purposes of this article it will be useful to state in extensor the facts sand holdings in In re Presidential Election Petition, Akuffo-Addo, Bawumia & Obetsebi-Lamptey (No.1) v Mahama & Electoral Commission (National Democratic Congress Applicant) (No.1) supra for a better clarification.
Facts of the case
The NDC filed an application for joinder to be joined to the 2012 election petition. Following the 7thDecember 2012 presidential Election, the first respondent to the petition His Excellency John Dramani Mahama, was declared validly elected by the second respondent, the Electoral Commission, as President of the Republic of Ghana. He was gazetted and subsequently sworn in.
Feeling aggrieved, the first petitioner, Nana Addo Dankwa Akufo-Addo, who stood on the ticket of the New Patriotic Party as Presidential Candidate; his running mate Dr Mahamadu Bawumia and one other person, namely, Jake Obetsebi-Lamptey, filed a 33-paragraph petition challenging the declaration of the first respondent by the second respondent as the validly elected president. The reliefs that the petitioners sought were:
“(i) a declaration that John Dramani Mahama was not validly elected as President of the Republic;
(ii) a declaration that Nana Addo Dankwa Akufo-Addo, the first petitioner, rather was validly elected President of the Republic of Ghana; and
(iii) consequential orders as this court may seem fit.”
Decision of the majority
The Supreme Court by a six to three majority decision ( per Atuguba, Sophia Adinyira, R.C Owusu, Dotse, Gbadegbe and Vida Akoto-Bamfo JJSC, granted the application by the National Democratic Congress (NDC) for joinder as a respondent to the election petition challenging the validity of the election of the president. In support of the decision, the majority held, inter alia as follows:
“where two parties were in a dispute before a court of competent jurisdiction and the determination would directly affect a third party (such as the applicant National Democratic Congress) either in its pocket or right or would be required to make a contribution either in cash or in kind, then the court ought to exercise its discretion in favour of the applicant since by so doing all matters would be effectually and completely determined between all those concerned in the outcome.”
The majority further held;
“In the instant case, the applicant NDC, not being a citizen could not file a petition under article 64(1) of the constitution 1992, but certainly had an interest in the issues before the court and therefore being likely to be affected in its legal right or pocket, the doors of justice should not be shut against it. In the view of the majority of the court, to ask the applicant, a political party, whose rights were enshrined in the Constitution and whose pivotal role in the nomination, selection and sponsorship of the subject of the petition could not be denied, to only watch the proceedings from the sideline would, as it were, amount to an injustice. It was certainly in the interest of justice that a party who would be directly affected by the outcome of the dispute before the court be joined to the proceedings.”
Decision of the minority
However, the minority of the court dismissed the contention of the applicant NDC, that it could properly be joined to the election petition on the grounds that it was an interested party, having supported the respondent John Dramani Mahama and supported him with resources and personnel. The words of Baffoe-Bonnie JSC (for the minority) is as follows:
“There is nothing in the averments that shows that it is a necessary party to the resolution of the matters in controversy. Mere interest without more does not qualify one to be joined to an action as a party. What is it that the applicant brings to the table that the first respondent does not bring? What interest does the applicant have that cannot be taken care of by the first respondent, who I dare say has a higher stake in the outcome of the action than the applicant seeing that it is his election which is being challenged? From the state of the pleadings what relief is being sought by the petitioners either directly or inferentially, against the applicant which is seeking to join? None! Absolutely no relief whatsoever. And the principle has always been that the court cannot compel a plaintiff to proceed against a party he has no desire to sue.”
The author is of the view that the Supreme Court erroneously joined the National Democratic Congress (NDC) because the claims of the petitioners as stated supra did not directly affect the National Democratic Congress (NDC), as stated by the learned author Fidelis Nwadialo in his book, Civil, Procedure in Nigeria[13] “that the plaintiff must have a claim against him and desire to pursue it and that his interest must be identical with that of the existing defendant.” the learned author further said “the court would not compel a plaintiff to proceed against a party he has no desire to sue.
The respondent also presented all the facts needed to effectually and completely adjudicate upon and settle all the questions in dispute involved in the cause or matter. The intervener (NDC) could not demonstrate to the court that it was a necessary party and that its absence will not help to completely and effectually dispose of the matter. As stated in his book, Civil Procedure-A Practical Approach by S. Kwame Tetteh, the learned author, whose invaluable contribution to Civil Procedure in Ghana is well-known, pointed it out (as stated at page 151) as follows:
“The common test for joinder of a necessary party is the interest of justice; and for the intervener the test is whether the joinder would ensure that matters in dispute in the proceedings would effectually and completely be determined and adjudicated upon.”
According to the minority decision per Anin Yeboah JSC, “nowhere in the affidavit in support of the application of joinder, was it deposed to that without the presence of the NDC, the court cannot effectually and completely determine the petition.”
In the view of the author, the Supreme Court went contrary to the requirements in Oyedeji Akanbi (Mogaji) case supra. The majority decision applied principles in Ekwam v Pianim (No.1)[14] which the order for joinder was by the court per Kpegah JSC (at page 118 of the Report) held thus:
“Although the application was brought ex parte, the New Patriotic Party (NPP) should be “served as an interested party since it will undoubtedly be affected by the orders of this court.” runs contrary to the joinder of an intervener.
The court per Atuguba JSC further stated at page 21 of the Report thus:
“Since rule 45(4) of CI 16 empowers this court ‘on its own motion’ to join further parties to the action, it matters little whether the applicant herein is a ‘party’ or not within the meaning of the rule. However, rule 82 of CI 16 defines ‘party’ as follows: “party” includes a party to an appeal or any other proceedings and counsel of that party.” It is trite law that the expression ‘includes except where there is manifested an intention that it should do so, does not have an exclusive connotation in a statutory definition, unlike the word ‘mean’. There is no such manifestation of intent in this definition. I should therefore hold that the word ‘party’ in the context of this provision includes an interested party.”
His lordship could not clearly state that the NDC was a necessary party and therefore failure to join it to the suit could not effectually and completely determine the matter. Baffoe Bonnie JSC disagreed with the majority and held that:
“…..mere interest without more does not qualify one to be joined to an action as a party.”
Conclusion
I will conclude by advocating that the test for joinder of parties is different from joinder of an intervener. The Supreme Court should not have granted the application because the NDC couldn’t establish that it was a necessary party and its absence in the suit would directly affect the respondent. There was no evidence that the respondent did not state all its facts in the affidavit in support. The Petitioners did not also claim anything against the NDC for them to have the interest to be joined as a party. Within the meaning of article 64 of the Constitution 1992 only human person could be joined and not artificial person. These and other factors render the decision per incuriam and should be departed by the Supreme Court when a similar application goes before them. As rightly opined by the learned author of Civil Procedure in Nigeria, Fidelis Nwadialo, as follows:
“….an applicant for joinder must show not only that he is a necessary party to the action but also that failure to join him will result in the claim before the court not being effectually and completely determined. Where, however, all the facts before the court are sufficient for the effectual or complete determination of the claim between the parties before the court, the applicant cannot be a necessary party and his application for joinder, not being necessary for the effectual and complete determination of the claim, will be refused.”
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[1] Letang v Cooper [1965] 1 QB 232 CA
[2] 9th ed.
[3] [2013] SCGLR (Special Edition) 1
[4] [1961] 1 GLR 81
[5] [2000] SCGLR 102,
[6] [1973] 1 GLR 438,
[7] [1984-86] 1 GLR 710
[8] 9th ed.
[9] Bolster v Attorney General 28 N.E. 2d 475 (M
[10] (1986) 2 SC 471
[11] (1956) 1 QB 357-371
[12] (1994) 7-8 SCNJ (Pt. 2) 284
[13] 2nd edition at p. 168
[14] [1996-97] SCGLR 117
