EDEM AFFRAM v. BERNARD OWUSU-TWUMASI & ORS
2016
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
Areas of Law
- Civil Procedure
- Company Law
2016
HIGH COURT
GHANA
CORAM
AI Generated Summary
The Court ruled that the Applicant is not a proper party to be joined to the action, as he is neither a shareholder nor a director of the 2nd Defendant company. The Applicant's membership was effectively extinguished by a refund of his equity contribution and his voluntary resignation from his directorship.
RULING
This is the ruling of the court in respect of the application filed by the Applicant seeking an order of the court to be joined to the action as 2nd plaintiff under Order 4 Rule 5 of the High Court (Civil Procedure) Rules, C.I 47.
In the affidavit in support of the application, the Applicant deposed to the fact that he and the 1st Defendant/Respondent together incorporated the 2nd Defendant Company. He averred that he subscribed to twenty five million shares (25,000,000) in the 2nd Defendant Company and he was also named director at the incorporation of the 2nd Defendant Company. He avers that he is a member of the 2nd Defendant Company as he has never transferred his interest in the company. And hence his prayer to be joined to the suit as 2nd Plaintiff.
The Court by an Order dated 26th July, 2016 granted the application. The Defendants/Respondents applied to set aside the Order of the Court joining the Applicant as 2nd Plaintiff on the ground that the affidavit in opposition filed by the Defendants/Respondents was not brought to the attention of the Court to aid the Court to come to a decision on the ascertained facts from both sides.
In this application, the Defendants/Respondents in an affidavit deposed to by their counsel claim that
Applicant is not a shareholder of the 2nd Defendant company as by a letter dated the 28th September, 2007 he requested a refund of his capital contribution and same has been given him. Defendant/Respondents say that the Applicant had also voluntarily resigned from his directorship of the company. It is therefore their contention that since the Applicant is neither a Director of the 2nd Defendant company by virtue of his voluntary resignation and had also recovered all the equity he had contributed as a subscriber, he is not a proper party to be joined to the action.
JOINDER
Order 4 rule 5(2) of the High Court (Civil Procedure) Rules states as follows:
At any stage of proceedings the Court may on such terms as it thinks just either of its own motion or on application
(a) order any person who has been improperly or unnecessarily made a party or who for any reason is no longer a party or a necessary party to cease to be a party;
(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”.
This principle has received j