IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE HELD AT HOHOE ON FRIDAY THE 31ST

DAY OF MAY 2024 BEFORE HER LADYSHIP JUSTICE JOAN EYI KING, HIGH

COURT JUDGE

SUIT NO. E1/8/17

RICHARD ALABISON - PLAINTIFF/RESPONDENT

VRS

NELSON AGUDUAWU - DEFENDANT/APPLICANT

RULING- JOINDER

This is an application for and on behalf of the defendant/applicant hereinafter

referred to as applicant for an order joining Christopher Bedie and Mawuse Bedie to

the suit as co-defendants and for further orders as the Honourable Court may deem

fit. I shall quote the relevant paragraphs as follows:

4. That whiles the instant suit is pending final hearing and determination, new

foundation trenches have been dug on a portion of the land in readiness to

commence a building project. Please refer to Exhibit NA1 and NA2 being

photographs of the current activities on the land.

5. That enquiries revealed that the said project was commenced by Christopher

Bedie and Mawuse Bedie, a couple who revealed that the said project was being

constructed on the authority of Simon Asiamah who intimated to them that he was

the head of the Aguduawo Asiamah family.

1
6. That Christopher Bedie and Mawuse Bedie have ignored all admonitions to them

to desist from developing the land as same was not acquired from the rightful

representative of the Aguduawo Asiamah family and there is also a pending suit in

respect of the land.

7. That in order for all matters in controversy to be dealt with once and for all,

Christopher Bedie and Mawuse Bedie ought to be joined to the instant suit as co-

defendants.

The defendant/respondent hereinafter referred to as respondent opposed the

application. I shall quote the relevant paragraphs as follows:

4. I have been served with a motion on notice to join one Christopher Bedie and

Mawuse Bedie to the instant suit and I eagerly and strongly oppose to same as same

is made for the reasons to delay the instant case.

5. That one Tabias Kofi Kalai acquired land from defendant/applicant’s family in

1978 and in 1986 Tabias Kofi Kalai sold portions of the said land to plaintiff’s

predecessor Joseph Oyewusi.

6. Joseph Oyewusi caused his title in the land acquired to be registered at the Lands

Commission Ho, as No. RV:542/88.

7. I instituted this action against the defendant who is not the Head of Asiamah

family when he broke my boundary pillars and entered the land and started selling

portions of the land to unsuspecting buyers without the consent and the

authorisation from plaintiff’s family.

8. There is already an order from this court restraining both parties from doing

anything on the land till the final determination of instant suit

9. That any such developments on the land that injunction has been placed on can

only be met with contempt proceedings but not joinder.

2
10. Paragraph 5 of the affidavit in support is denied, in further denial thereto

applicant can take steps and sue Christopher Bedie and Mawuse Bedie and their

grantor Simon Asiamah and recover his land if only he had title to that land but not

to join them to the instant suit.

11. I have been advised by my counsel and verily belief same to be true that

Christopher Bedie and Mawuse Bedie are not necessary parties to the instant suit.

12. That the instant application is only a sham made for the reasons to delay this suit

and same is also frivolous and unmeritorious and same treated as the contempt it

deserves and applicant mulcted in heavy cost deterrent enough.

The said parties that the applicant intended to join also filed affidavit in opposition. I

shall quote the relevant paragraphs as follows:

2. That I obtained the consent of the second respondent to depose to this affidavit.

5. That Mawuse Bedie is my spouse and sister of the applicant.

6. That we are opposed to the instant application seeking to join me to the suit.

7. That we deny paragraph 5 of the affidavit in support of the instant application.

8. That we are not in any way connected to the construction works going on the land.

9. That the said construction works is being undertaken by Mr. and Mrs. Raphael

Colly Aformaley currently residing in the United States of America.

10. That I am neither an agent nor a workman for Mr and Mrs Aformaley who are

the owners of the disputed land acquired from the applicant family.

11. That our participation in this suit shall not in any way help the court to dispose

of the issue before it.

12. That we pray this Honourable Court to dismiss the instant application.

SUMMARY OF SUBMISSION BY BOTH COUNSEL

3
According to counsel for the applicant, as the matter is pending, the two parties

were busily constructing on the dispute land claiming ownership as per Exhibits

NA1 and NA2. Counsel referred to Order 4 rule 5(2)(b) and Order 1 rule 1(2) of CI 47

and contends that if the two parties are not joined to the suit, the applicant will be

compelled to issue writ against them over the same matter, which the Rules intends

to avoid as much as possible.

Commenting on the affidavit in opposition, counsel referred to paragraph 9 of the

affidavit in opposition by Christopher Bedie which says that the said construction

works is being undertaken by Mr. and Mrs. Raphael Colly Aformaley currently

residing in the United States of America. Counsel contends that, that is why the

applicant is saying that by the tenets of the rules, the said Mr and Mrs Raphael could

be added by the court suo moto. Counsel further submitted that, although the

applicant does not believe what the said Christopher Bedie is saying, it is their belief

that the presence of Christopher Bedie will assist the court in adjudicating the matter

since they know the said Mr and Mrs Raphael.

Commenting on the affidavit in opposition by the respondent, counsel argued that

all that the respondent is saying is that the application for joinder intends to delay

the trial and that the suit was commenced in the year 2014 but the trial has not

commenced and so to say that joining a party will delay the trial is far-fetched.

Counsel further submitted that they are aware that the wheels of justice grinds

slowly but will surely get to its destination. However, it is the contention of the

applicant that the admission that somebody is on the land whilst the matter is in

court, that party should be made a party in order to assist all parties.

On the other hand, counsel for the respondent opposed the application. Counsel

submitted that the suit was initiated in 2017 and not 2014 as alleged by counsel for

the applicant. That, when the respondent issued the writ against the applicant, in his

statement of claim, he did not counterclaim but only told the court that the

respondent is not entitled to his reliefs. Counsel further submitted that, he applied

4
for an interlocutory injunction which was granted and an injunction has been placed

on both parties.

According to counsel for the respondent, it is the respondent who issued the writ

against the applicant and it is the respondent who knows his land very well and has

not seen the said Christopher Bedie and Mawuse Bedie on his land and that if there

had been any construction, the respondent would have brought them to court for

violating a court order and that it is not the applicant who will force the respondent

that he should join another party to the suit when they do not have such activities on

their land.

Counsel contends that the case is ripe for hearing and maintain that the application

is brought to delay the trial. Counsel further contends that if the applicant says that

the two parties are constructing a building on behalf of one Asiamah who is a

member of the defendant’s family, then the defendant can take on the said Asiamah,

Christopher and Mawusi if they realise that they are on their land but not to be

joined to the suit and that Exhibits NA1 and NA2 is hinged on speculation and

should not be given any consideration by the court as such activities are not on the

plaintiff’s land and that if such activities are on the plaintiff’s land, they would have

taken steps long ago. Counsel submitted that the application is frivolous as well as

unmeritorious and same should be dismissed and the applicant mulcted with cost

for bringing such frivolous application.

In a rebuttal, counsel for the applicant submitted that if the respondent is saying that

there are no activities going on, on their land, however, the said Christopher says

there is construction going on but he is not responsible, the court should take note of

the contradiction and determine the application accordingly.

ANALYSIS AND EVALUATION

This is an application for and on behalf of the applicant praying the court for an

order to join one Christopher Bedie and Mawuse Bedie to the suit as co-defendants.

5
According to counsel for the applicant, whiles the instant suit is pending final

hearing and determination, new foundation trenches have been dug on a portion of

the land in readiness to commence a building project. That enquiries revealed that

the said project was commenced by Christopher Bedie and Mawuse Bedie, a couple

who revealed that the said project was being constructed on the authority of Simon

Asiamah who intimated to them that he is the head of the Aguduawo Asiamah

family.

On the other hand, counsel for the respondent contends that it is the respondent who

issued the writ against the applicant and it is the respondent who knows his land

very well and has not seen the said Christopher Bedie and Mawuse Bedie on his

land and that if there had been any construction, the respondent would have

brought them to court for violating a court order and that it is not the applicant who

will urge the respondent that he should join another party to the suit when they do

not have such activities on their land.

Counsel further contends that Exhibits NA1 and NA2 is hinged on speculation and

should not be given any consideration by the court as such activities are not on the

plaintiff’s land and that if such activities are on the plaintiff’s land, they would have

taken steps long ago.

It is trite that, 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. This is

the principle in the case of LETANG v COOPER [1965] 1 QB 232 CA.

Also in the case of IN RE PRESIDENTIAL ELECTION PETITION, AKUFFO

ADDO, BAWUMIA & OBETSEBI-LAMPTEY (NO.1) v MAHAMA &

ELECTORAL COMMISSION (NATIONAL DEMOCRATIC CONGRESS

APPLICANT) (NO.1) [2013] SCGLR (Special Edition) 1, the Supreme Court on the

issue of joinder stated as follows:

6
 “Generally a plaintiff who conceives that he has a cause of action against a

defendant is entitled to pursue his case against that defendant and cannot

be compelled to proceed against other persons whom he has no desire to

pursue. Nevertheless, a person who is not a party may be added as a

defendant against the wishes of the plaintiff on his own intervention or on

the application of the defendant or in some cases by the court of its own

motion. The court has power to add as a party to the proceedings any

person not already a party but against whom there may exist a question or

issue arising out of or relating to or connected with any relief or remedy

claimed in the cause or matter which in the opinion of the court it would be

just and convenient to determine as between him and that party as well as

between the parties to the cause or matter. The main object of these powers

is to allow persons to be added as parties to proceedings so as to prevent

multiplicity of proceedings and to enable all necessary and proper parties

to be brought to court who would be directly affected by the result of the

proceedings.”

However, it is provided under Order 4 rule 5(2) (b) of CI 47 as follows:

“(2) At any stage of proceedings the Court may on such terms as it thinks just

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 proceedings are effectively and completely determined and

adjudicated upon to be added as a party.”

The import of this provision is that, the trial court has the power at any stage of the

proceedings, either suo motu or by an application to order any person who ought to

have been joined, whose presence before the court may be necessary to enable the

court effectually and completely adjudicate upon and settle all the issues involved in

7
the cause or matter, to be added as a party. This was explained by the Court of

Appeal in the case of USSHER v DARKO [1977] 1 GLR 476, CA per Apaloo JA (as

he then was) in an application for joinder of a party as follows:

“The jurisdiction of a court to join a party to an action to avoid multiplicity

of suits under Order 16 rule 11 (The old Civil Procedure Rules -LN 140A)

might be exercised at any stage of the proceeding, so long as anything

remained to be done in the action…..whether the application should be

acceded to or denied, was a matter for the exercise of the trial judge’s

discretion and save that such discretion must be exercised judicially and in

a manner conformable with justice, no fixed rules existed as to when and

how it should be exercised.”

It was also held by the Supreme Court in the case of IN RE PRESIDENTIAL

ELECTION PETITION, AKUFFO ADDO, BAWUMIA & OBETSEBI-LAMPTEY

(NO.1) v MAHAMA & ELECTORAL COMMISSION (NATIONAL

DEMOCRATIC CONGRESS APPLICANT) (NO.1) [2013] SCGLR (Special Edition)

1 per Anin Yeboah JSC (as he then was) 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….”

The Order also provides for a person with an interest in a pending case or outcome

of the case to apply to be joined to the suit. It also means that the Court has the

power to direct that any person whose presence in the suit is necessary, should be

made a party to the suit before it. This means that an application for joinder shall be

granted where the applicant’s presence would ensure or guarantee that all matters

8
with respect to the suit are affectively and completely determined. This is to avoid

multiplicity of suits as held by the authorities.

On the other hand, where the presence of the applicant in the suit would not assist

the court to completely and effectively adjudicate all issues in controversy, then the

court is enjoined to refuse the application.

The test applied by the courts in determining whether a person should be joined to

an action or not is stated by Denning MR in the case of GURNER v CIRCUIT AND

ANOTHER [1968] 2 QB 587 at 595 as follows:

“When two parties are in dispute in an action at law and the determination

of the 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

direction 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

upon between all those directly concerned in the outcome.”

The Supreme Court applied this principle in several cases including SAI v TSURU

III [2010] SCGLR 762 and SAM v ATTORNEY GENERAL [2000] SCGLR 102

where the Supreme Court endorsed the test whether the joinder will ensure that all

matters in dispute are completely determined. In SAM v ATTORNEY GENERAL

(supra) the Supreme Court per Ampiah JSC in delivering the ruling of the majority

of the court stated as follows:

“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

9
 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.”

Also in the case of APPENTENG v BANK OF WEST AFRICA LTD. [1961] GLR 81,

Ollenu J (as he then was) stated as follows:

“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 not, the application should be refused.”

Also in his book, Civil Procedure – A Practical Approach by S. Kwami Tetteh, the

learned author pointed this out 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.”

Another test for consideration in an application for joinder is whether the rights and

liabilities of the proposed joinder are the same as the defendant if the applicant is

being joined as a co-defendant. On the other hand, if the applicant being joined is

another plaintiff, the question to address is whether his rights and liabilities are the

same as the plaintiff.

As a general rule, for two or more persons to be joined together as co-plaintiffs or co-

defendants in a lawsuit, they generally must share similar rights or liabilities. At

common law, a person could not be added as a party unless that person, jointly with

the other plaintiff was entitled to the whole recovery of their claim. In the same vein,

a person could not be added as a defendant unless jointly with the other defendant,

was liable for the entire demand.

10
From the above authorities, it is clear that the nature of the case, the nature of the

reliefs sought, whether it affects the person sought to be joined, avoidance of

multiplicity of suits, whether the person seeking to join is a necessary party, thus one

whose presence would lead to an effectual and complete adjudication of the matters

in controversy before the court, or one whose exclusion would see aspects of the

cause or matter unadjudicated upon, are the main points for consideration.

Further from the authorities, a person who is not a party to an action, who on his

own application is joined as a co-defendant is referred to as an intervener. Black’s

Law Dictionary (9th Edition) defines an intervener as one who voluntarily enters a

pending lawsuit because of a personal stake in it.

From the above, the main issue for consideration is whether or not the said

Christopher Bedie and Mawuse Bedie could be properly joined to the suit. In other

words, are they necessary parties to the proceedings?

As held by the authorities, the overriding principle is that all necessary and proper

parties should be before the court so as to ensure that all matters in dispute are

effectively and completely determined and adjudicated upon. Further, as held in the

case of SAM v ATTORNEY GENERAL (supra), the person to be joined would

depend on the nature and facts of the case. The question that flows from this is, are

the said Christopher Bedie and Mawuse Bedie necessary parties whose presence in

the action necessary would ensure that all matters in controversy are effectively and

completely adjudicated upon?

Counsel for the applicant argued that per the affidavit in opposition by Christopher

Bedie, they claim the said construction works is being undertaken by Mr. and Mrs.

Raphael Colly Aformaley currently residing in the United States of America and

Counsel contends that, the said Mr and Mrs Raphael could be added by the court

suo moto. Counsel further submitted that, although the applicant does not believe

what the said Christopher Bedie is saying, it is their belief that the presence of

11
Christopher Bedie will assist the court in adjudicating the matter since they know

the said Mr and Mrs Raphael.

Order 4 rule 8 of CI 47 provides as follows:

“Rule 8 – Actions for possession of land

(1) Without prejudice to rule 5, the Court may in an action for possession of

immovable property at any stage of proceedings order any person who is

not a party to the action but who is in possession of the immovable

property, whether personally in possession or by a tenant or agent, to be

made a defendant.

(2) An application under this rule by a person in possession of an immovable

property in dispute may be made on notice to the plaintiff supported by an

affidavit showing that the person is in possession of the immovable

property in question and if by a tenant or agent, naming that tenant or

agent.”

However, in the instant application, the said Christopher Bedie and Mawuse Bedie

have denied being on the land and averred that they are not in any way connected to

the construction works going on the land and that the said construction works is

being undertaken by Mr. and Mrs. Raphael Colly Aformaley currently residing in

the United States of America. They further submitted that they are neither an agent

nor a workman for Mr and Mrs Aformaley.

This means that as the said Christopher Bedie and Mawuse Bedie have denied being

in possession of the disputed land, the court cannot order them to be parties since

their presence would not assist the court determine all matters in controversy

effectually.

Commenting on the affidavit in opposition, counsel referred to paragraph 9 of the

affidavit in opposition by Christopher Bedie which says that the said construction

works is being undertaken by Mr. and Mrs. Raphael Colly Aformaley currently

12
residing in the United States of America. Counsel contends that, the said Mr and Mrs

Raphael could be added by the court suo moto. Counsel further submitted that,

although the applicant does not believe what the said Christopher Bedie is saying, it

is their belief that the presence of Christopher Bedie will assist the court in

adjudicating the matter since they know the said Mr and Mrs Raphael.

The principle of law is that where two parties are in a dispute before a court of

competent jurisdiction and the determination will directly affect a third party either

in his 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 that applicant since

by so doing all matters in controversy would be effectually and completely

determined between all those concerned in the court. This was the situation in the

case of EKWAM v PIANIM (NO.1) [1996-97] SCGLR 117 which the order for

joinder was by the court. The Supreme Court per Kpegah JSC held as follows:

“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.”

The question is, as the said Christopher Bedie and Mawuse Bedie have denied being

on the disputed land and the respondent being the plaintiff has also confirmed that

there are no activities on the disputed land, are the said Christopher Bedie and

Mawuse Bedis necessary parties whose presence in the action is necessary to ensure

that all matters in controversy are effectively and completely adjudicated upon as

required by the authorities supra? Again, will the outcome or orders of the court

affect the said Christopher Bedie and Mawuse Bedie?

The plaintiff who brought the defendant to court says that the parties the applicant

intends to join are not on the disputed land, and so, the question is, if they are joined,

how would their presence assist the court in determining the issues set down for

trial between the plaintiff and the defendant?

13
Again, the plaintiff/respondent who issued the writ against the applicant, has stated

that there is no activity on the disputed land. The question is, will the said Mr and

Mrs Raphael be affected by the outcome of the suit as the plaintiff claims there are

no activities on the disputed land? As there are no claims directly or inferentially

against the said Mr and Mrs Raphael, and the issues set down for trial are not

directed at them, the question is, what are they going to respond to if and when they

are joined to the proceedings?

In the case of YAHAYA & ANOR v SUMMA HOLDING CORPORATION &

ANOR (Suit No. H1/48/2005, C.A. unreported) and ASANTE v SCANSHIP

GHANA LIMITED [2013-2014] SCGLR 1294 the courts held that the law is that the

court is to determine issues between proper parties. As the authorities have held, a

proper party is anyone who has an interest in the subject matter of a lawsuit or may

be affected by the outcome of a judgment or order and can either join the lawsuit or

be brought into the suit by a party to the suit, but whose presence is not essential in

order for the court to adjudicate the rights of the other parties.

As counsel for the respondent submitted, in the substantive matter, per the reliefs

being sought by the respondent, the applicant did not counterclaim for declaration

of title to the land among others and that the applicant only claimed that the

respondent is not entitled to the relief being sought.

In the case of KANNIN v KUMAH & OTHERS [1959] GLR 54 the court held that

without a counterclaim a defendant is not entitled to a declaration of title i.e. the

defendant cannot be declared owners of the property in dispute.

As stated earlier in SAM vrs ATTORNEY GENERAL (supra) “that 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” and also the case of APPENTENG v

BANK OF WEST AFRICA LTD. (supra) that “In an application for joinder, the

14
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 not, the application should be

refused and per Order 4 rule 5(2) of CI 47 and the case of USHER v DARKO (supra)

which held that where the presence of the party to the suit would not assist the court

in any way to completely and effectually adjudicate or determine the issues in

controversy or where the court can conveniently or adequately deal with the case

without the party, the application to be joined as a party ought to fail.

From the above principles and authorities, it is without doubt that the compelling

factor in such an application is whether the party who is to be joined to the suit has

any personal interest in the outcome of the case or will be affected in any way by the

outcome of the case. In my view the fact that a person’s name has been mentioned in

a suit, is not a ground for that party to be joined as a party. The cases of YAHAYA &

ANOR v SUMMA HOLDING CORPORATION & ANOR (Supra) and ASANTE v

SCANSHIP GHANA LIMITED (supra) refers.

Counsel for the applicant contends that the court can suo moto join the said Mr and

Mrs Raphael to the proceedings. However, I find that when the respondent who is

the plaintiff in the substantive suit, averred that the said activities is not on the land

in dispute, the applicant failed to challenge this assertion.

Further, the Exhibits NA1 and NA2 that the applicant attached as evidence of

activities on the disputed land, has been denied by the respondent as not being the

land in dispute. Further the court is unable to determine at this stage that indeed it is

the same land in dispute. In the case of ZAMBRAMA v SEGBEDZI (1991) 2 GLR

221 per Kpegah J.A. (as he then was) held that: “…..A person who makes an

averment or assertion, which is denied by his opponent has the burden to

establish that his averment or assertion is true and he does not discharge this

burden unless he leads admissible and credible evidence from which the fact or

facts he asserts can properly and safely be inferred.

15
In the instant application, the applicant failed to discharge this burden for the court

to infer that indeed Exhibits NA1 and NA2 refers to the land in dispute.

In conclusion, upon considering the motion paper, the affidavit in support, the

affidavit in opposition and the submissions made by counsel for the applicant and

counsel for the respondent, and applying the general rules to the claim before the

court, I therefore find it prudent to refuse the application, the reason being that I find

the application unmeritorious. The said Christopher Bedie, Mawuse Bedie, Mr. and

Mrs Raphael Afomaley are not necessary parties to assist the court determine or

dispose of the matters in dispute effectually and effectively. It is my further view

that the court can conveniently or adequately determine the issues without their

presence in the suit as parties. The application hereby fails and same is dismissed.

Cost of Two Thousand Ghana Cedis (GHC2,000.00) is awarded in favour of the

plaintiff and the parties Christopher Bedie and Mawuse Bedie. The matter will

therefore take its normal course.

H/L JOAN E. KING

JUSTICE OF THE HIGH COURT

EMILE ATSU AGBAKPE FOR DEFENDANT/APPLICANT

ERNEST DELA AKATEY FOR PLAINTIFF/RESPONDENT

16