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July 4, 2018
HIGH COURT
GHANA
CORAM
On the 16th March 2017, the Plaintiff caused a Writ of Summons to be issued against the 1st Defendant.
In the course of the trial an application was brought for the joinder of the 2nd and 3rd Defendants on 4th December 2017 and same was granted.
The 2nd Defendant was served with a Writ of Summons and an accompanying Statement of Claim pursuant to the order granted.
The present application has been brought by the 2nd Defendant to strike it off the suit and set aside service of the Writ on it pursuant to order 4 r 52(a) and order 9 rule 8 (a) of the High Court Civil Procedure Rules 2004 (C. I 47)It is the case of the 2nd Defendant/Applicant that the contract based on which Plaintiff sued was between the Plaintiff and the 1st Defendant.
The 2nd Defendant was at all material times not a party to the contract.
The 2nd Defendant only contacted 1st Defendant in 2012 to install glass cladding panels on its NCA tower which contract Plaintiff/Respondent was not a party to.
The 2nd Defendant/Applicant further avers that, upon completion of this project, 2nd Defendant paid in full the contract sum to the 1st Defendant including the retention amount and therefore does not owe 1st defendant or the Plaintiff/Respondent.
It is their respectful view that, if the Plaintiff/Respondent has any cause of action at all, it should be against the 1st Defendant.
The 2nd Defendant/Applicant states that, the Plaintiff has failed to make any claim against it in its Amended Statement of Claim and it believes that the matters before this court can be settled between the Plaintiff/Respondent and the 1st Defendant without the presence of the 2nd Applicant.
In opposing the application, the Plaintiff/Respondent based his submission on the depositions made by the Applicant that it does not have an agreement with the Plaintiff but rather the 1st Defendant herein and further that all monies due the 1st Defendant have been paid to the 1st Defendant.
Counsel for the Plaintiff/Respondent referred the court to Paragraphs 9, 17 and 19 of the 1st Defendant’s Statement of Defence where in essence the 1st Defendant is saying he has not paid the Plaintiff because 2nd Defendant has not paid it.
The Respondent continues that, it could not have set up a case against a non-existent party (NCA)at the time.
Respondent further stated that if the NCA were to file a defence, then the Plaintiff would be entitled to amend its Writ since pleadings have not closed to streamline its case against the part
AI Generated Summary
The Ghana High Court, per Her Ladyship Justice Mrs. Janapare A. Bartels-Kodwo, refused an application by the National Communications Authority (2nd Defendant) to be struck out of a suit and to set aside service. The Plaintiff originally sued the 1st Defendant; on 4 December 2017, the court granted joinder of the 2nd and 3rd Defendants. The 2nd Defendant argued it was not party to any contract with the Plaintiff, had fully paid the 1st Defendant for glass cladding on the NCA tower, and owed neither the 1st Defendant nor the Plaintiff. The 1st Defendant’s defence alleged its fees were withheld due to defective glass supplied by the 3rd Defendant and installed by the Plaintiff. Applying Order 4 rule 5(2)(a)-(b) of C.I. 47 and authorities including Apenteng v Bank of West Africa and Morkor v Kumah, the court found the 2nd Defendant’s presence necessary for an effectual, holistic determination of all matters. The motion was dismissed; no order as to costs.